Janeen S., Complainant,v.Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Feb 19, 2016

0120142929 (E.E.O.C. Feb. 19, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Janeen S.,
Complainant,

v.

Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120142929

Hearing No. 520-2013-00212X

Agency No. 2012-24507-FAA-01

DECISION

Complainant filed an appeal from the Agency’s July 14, 2014, final order concerning her equal
employment opportunity (EEO) complaint alleging employment discrimination in violation of
the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. For the following reasons,
the Commission AFFIRMS the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked for the Agency as a
Technical Support Specialist (TSS), 0301-F, in the New York Aircraft Certification Office
(NYACO) in Westbury, New York. One of the programs maintained by the Agency was a
Designee and Delegation Program, in which private persons are designated to act as
representatives of the Federal Aviation Administration (FAA) in examining, inspecting, and
testing persons and aircraft for purposes of issuing certificates. During the relevant time
Complainant also served as the Designee Process Coordinator (DPC) for the NYACO.

Complainant filed an EEO complaint dated May 24, 2012, alleging that the Agency
discriminated against her on the basis of sex (female) when:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is
published to non-parties and the Commission’s website.

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A similarly situated male coworker who performs the same duties is paid more;
Complainant is in the F-Band pay category; whereas her Agency male coworkers
(Coworker 1, Coworker 2, and Coworker 3) are being paid more.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted Complainant’s motion for a
decision without a hearing and issued a decision without a hearing on July 24, 2014.

In her decision, the AJ noted the main responsibility of the TSS position is to coordinate the
Designee and Delegation Program (Designee program). The AJ noted that the TSS also serves
as the Space Management and Facility Security Coordinator. The AJ stated Complainant’s
primary responsibility is the coordination of the designee process and the maintenance of records
and reports associated with that program. The AJ noted these responsibilities include assisting
designees, designee applicants, and FAA personnel in processing new appointments, candidate
status, denials, transfers, expansions, appeals, terminations, evaluations, orientations, and
renewals.

The AJ noted Complainant also performs work related to the office building where the staff is
housed to include space and building-related issues and other work falling under personnel
security such as building security, keys, issuance of IDs, and Continuance of Operations in an
emergency (COOP). The AJ found Complainant responsible for work consisting of processes
affecting the designee administrative program, security space, and building management. The
AJ noted Complainant uses judgment and experience in applying guidelines and precedent in
non-routine situations, but is not selecting approaches for matters of a substantial nature. The AJ
recognized Complainant independently completes the portion of work involving the designee
administrative process and other assignments. The AJ noted the Human Resources (HR)
Specialist for the New England Region, concluded on February 21, 2012, Complainant’s position
did not fully meet the Level 2 definition of the Professional Category and based on the work
assigned, qualification requirements and applying the professional level definitions to the whole
job, Level 1 is the appropriate level for her position.

The AJ determined Complainant failed to establish a prima facie case of wage discrimination.
The AJ found Complainant failed to show that she received less pay that her male coworkers.
The AJ found that Complainant and the comparatives not only have different job titles and job
descriptions but they perform substantively different duties and have substantively different
responsibilities which require vastly different levels of skill, effort, education, and training.

The AJ noted that Coworker 1 serves as the Management and Program Analyst in the Denver
Aircraft Certification Office. The AJ stated that Coworker 1 provides analytical support,
assistance, and guidance to managers and office staff in the design, development and use of tools
analysis, data collection and graphical presentations. The AJ noted that Coworker 1 analyzes
and provides guidance on the evaluation of the effectiveness of various programs and activities,

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such as the Quality Management System (QMS) metrics collection, data collection for
certification project sequencing, and maintaining utilized databases. The AJ noted that
Coworker 1’s position also requires preparation of presentations and graphic illustrations for
management review. The AJ noted that Coworker 1’s position requires him to have knowledge
of analytical and evaluative methods and techniques for improving organizational effectiveness
and efficiency and skills in analyzing, researching, and assembling information for reports and
briefings to management and others. The AJ noted that Coworker 1 also acts as the Office’s
Freedom of Information Act (FOIA) point person for the Denver ACO, maintaining and
providing information for all FOIA requests and activities with input from the engineering staff.
In contrast, the AJ noted Complainant does not act as the FOIA point person for her office; nor
does she analyze or provide guidance on the evaluation of the effectiveness of various programs
and activities, such as the QMS metrics collection or data collection. Additionally, the AJ noted
Complainant’s position does not require her to have knowledge of analytical and evaluative
methods and techniques for improving organizational effectiveness and efficiency and skill in
analyzing, researching, and assembling information for reports or briefings. The AJ noted that
although Complainant periodically conducts presentations, she admits that such presentations are
not technical in nature.

In addition, the AJ recognized that Coworker 2 is the Technical Information Specialist in the
FAA’s Fuels Program Branch located in Fort Worth, Texas. The AJ noted that Coworker 2
serves as the Principal Manufacturing Inspector with program responsibility for certifications,
inspections, and surveillance of complex productions facilities. The AJ stated that Coworker 2
administers the Code of Federal Regulations associated with: (1) Production Certification; (2)
Type Certification; (3) original Airworthiness Certification; and (4) Designee Management. The
AJ noted that Coworker 2 determines whether the quality control system, organization, and
production facilities of an applicant enable him/her to manufacture aeronautical products. The
AJ also noted that Coworker 2 conducts compliance and enforcement, supplier control audits,
suspect unapproved parts investigations, and undue burden determinations. The AJ stated
Coworker 2 is required to be familiar with weight and balance limits, engineering limits, aircraft
components, pressures, speed, and operational limitations. The AJ determined Coworker 2 did
not perform administrative work related to the procedural requirements for Designated
Engineering Representative (DER) appointments or renewals. The AJ stated that Complainant’s
description of her job duties does not indicate that she performs inspections, certifications, or
surveillance of complex production facilities. The AJ also noted that Complainant’s job duties,
skills, or responsibilities do not require her to possess technical knowledge and experience
regarding aircraft and their various components which allowed Coworker 2 to understand the
various technical requirements of aircraft certification.

The AJ noted that Coworker 3 is a Technical Information Specialist in the FAA’s Special
Certification Office within the Rotorcraft Directorate located in Fort Worth, Texas. The AJ
noted Coworker 3 is the Rotorcraft Directorate’s Sharepoint Administrator and member of the
national Sharepoint team. The AJ stated Coworker 3 develops Sharepoint sites and does
maintenance of the sites for the Special Certification Office and for other offices within the
Rotorcraft Directorate. The AJ noted Coworker 3 is the office contact for the National

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Automated Conformity Inspection Process (NACIP), obtaining and inputting data related to
requests for inspections to ensure conformity of various aircraft/parts to applicable standards.
The AJ stated Coworker 3 was also responsible for assisting certificate holders in obtaining
Supplemental Type Certification (STC) Foreign Validations. The AJ stated Complainant does
not perform the same duties as Coworker 3.

The Agency subsequently issued a final order on July 14, 2014. The Agency’s final order fully
implemented the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of
review “requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

The United States Supreme Court articulated the requirements for establishing a prima facie case
of discrimination under the EPA in Corning Glass Works v. Brennan. 417 U.S. 188 (1974). To
establish a prima facie case of a violation under the EPA, a complainant must show that she or he
received less pay than an individual of the opposite sex for equal work, requiring equal skill,
effort, and responsibility, under similar working conditions within the same establishment.
Sheppard v. EEOC, EEOC Appeal No. 01A02919 (September 12, 2000), req. for reconsideration
denied, EEOC Request No. 05A10076 (August 12, 2003).

Once a complainant has met this burden, an employer may avoid liability only by showing that
the difference in pay is justified under one of the four affirmative defenses set forth in the EPA:
(1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or
quality of production of work (also referred to as an incentive or piecework system); or, (4) a
differential based on any factor other than sex. Id. We note that the EPA is limited to certain
sex-based differentials in wages. The EPA does not prohibit discrimination in other aspects of
employment, even those that have compensation-related consequences, such as hiring, firing,
promotion, transfer, or other issues. Wiley v. Department of the Treasury, EEOC Appeal No.
01972118 (June 27, 2001) (citing Schnellbaecher v. Basking Clothing Co., 887 F.2d 124, 130
(7th Cir. 1989) (a claim of discriminatory promotions is beyond the scope of the EPA but
actionable under Title VII)).

The requirement of “equal work” does not mean that the jobs must be identical, but only that
they must be “substantially equal.” Laffey v. Northwest Airlines, 567 F.2d 429, 449 (D.C. Cir.

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1976). The terms skill, effort, and responsibility, “constitute separate tests, each of which must
be met in order for the equal pay standard to apply.” 29 C.F.R. § 1620.14(a). The factors of
skill, effort, and responsibility used to measure the equality of jobs are not precisely definable.
Id. Skill includes such things as “experience, training, education, and ability.” 29 C.F.R. §
1620.15(a). Effort addresses the amount of “physical or mental exertion needed for the
performance of a job.” 29 C.F.R. § 1620.16(a). Responsibility concerns “the degree of
accountability required in the performance of the job, with emphasis on the importance of the job
obligation.” 29 C.F.R. § 1620.17(a).

Upon review of the record, we find that Complainant’s identified comparatives did not perform
equal work requiring equal skill, effort, and responsibility compared to Complainant. While
Complainant did not make any argument on appeal, we note that in in her response to the
Agency’s motion for summary judgment, Complainant stated that she learned in November
2011, that Coworker 1, who was a higher grade, was responsible for 6 DERs while Complainant
was responsible for approximately 125 DERs and she was paid at a lower grade. The record
reveals that in addition to the duties mentioned by the AJ with regard to his position as
Management Program Analyst, Coworker 1 also served as the Designee Process Coordinator
(DPC) in Denver to processes appointments, renewals, expansions, terminations, and transfers in
technical programs such as the DER program. Upon review, we find that despite the overlap of
DPC duties, substantial evidence supports the AJ’s finding that Coworker 1’s overall job
function required a far broader skill set, effort, and a greater level of responsibility than does
Complainant’s position, which primarily consisted of DPC duties. Additionally, we find the
record supports the AJ’s finding that Coworker 2 and Coworker 3 performed different duties that
have substantively different responsibilities that require vastly different levels of skill, effort,
education, and training. Thus, we determine Complainant failed to establish that she performed
equal work to any of the three comparatives.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:

1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.

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Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by mail within five days of the
expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition
must also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do
so may result in the dismissal of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter

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the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

February 19, 2016
Date