Jessica E.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

May 6, 2016

0120150908 (E.E.O.C. May. 6, 2016)

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

Jessica E.,1
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice,
Agency.

Appeal No. 0120150908

Hearing No. 570-2013-00985X

Agency No. OBD-2013-00095

DECISION

On January 9, 2015, Complainant filed an appeal from the Agency’s December 9, 2014, final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. § 2000e et seq. and 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 decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Freedom of
Information Act (FOIA) Specialist, GS-7, for the Agency’s Office of Information Policy (OIP)
located in Washington, D.C. Complainant was hired under the Federal Career Intern Program
(FCIP). Complainant began working as a FOIA Specialist in July 2010. Complainant was
terminated in February 2011. During the relevant time, Complainant’s first line supervisor
was the Initial Request Staff Deputy Chief (S1). Complainant’s second line supervisor was the
Initial Request Staff Chief (S2).

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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On February 8, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American) and sex (female) when:

1. Complainant was paid less than White male FOIA Specialists in the FCIP.

2. Complainant was fired from her FCIP position on February 11, 2011.

On March 22, 2013, the Agency partially accepted Complainant’s complaint. With regard to
claim (1), the Agency noted Complainant alleged that before she accepted the Agency’s offer
of employment at the GS-7 level, she complained to the Agency that the starting salary was too
low based on her education and experience. The Agency noted Complainant further alleged
that it was not until September 14, 2012, when she received information from a coworker
about a website that publicly displayed the salary information for Federal employees that she
realized there might be some disparate treatment in pay. The Agency accepted claim (1) for
investigation.

The Agency dismissed claim (2) pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO
Counselor contact. The Agency noted that Complainant initially contacted EEO Staff on
October 25, 2012, which was beyond the requirement for presenting a timely claim. The
Agency noted its EEO Staff, by communication dated March 4, 2013, requested Complainant
provide a reason for her untimely contact with regard to claim (2). The Agency noted that in
her response dated March 6, 2013, Complainant indicated that although she was verbally
terminated from the FCIP program on January 26, 2011, it was not until she received notice of
the pay disparity that she began to realize that there had been pretext for discrimination
pursuant to Title VII and the Equal Pay Act. The Agency determined Complainant’s
explanation did not warrant a waiver of the time limits.

The Agency stated that during counseling, Complainant informed the EEO Counselor that on
February 1, 2011, she filed a complaint with the Office of Special Counsel (OSC) concerning
her termination. The Agency noted that on February 10, 2011, OIP informed Complainant of
their decision to end her term of service appointment under the FCIP program, and they also
informed Complainant of her right to appeal that decision through the EEO process and of the
time limit for contacting an EEO Counselor. Thus, the Agency concluded Complainant was
notified of the 45-day time limit for contacting an EEO Counselor. The Agency found
Complainant’s explanation for her untimely contact was not sufficient to warrant a waiver of
the time limits and dismissed claim (2).

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 requested a hearing but the
AJ denied the hearing request on the grounds that Complainant did not sufficiently respond to
the Agency’s discovery requests. The AJ remanded the complaint to the Agency, and the
Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

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The Agency issued a final decision on December 9, 2014. In its final decision, the Agency
noted that it previously dismissed Complainant’s termination claim as untimely, but not the
disparate pay claim. The Agency noted Complainant challenged the Agency’s decision to
dismiss her termination claim, but the AJ sustained its dismissal. The Agency noted it agreed
with the AJ’s reasoning in dismissing the termination claim. The Agency found Complainant’s
claim of pay disparity was timely raised. With regard to claim (1), the Agency concluded 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, at Chapter 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”).

At the outset, we note that on appeal, Complainant does not challenge the Agency’s dismissal
of claim (2). Accordingly, we will not address this matter in this decision

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).

All forms of pay are covered by the EPA, including salary, overtime pay, bonuses, stock
options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or
gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits.
See EEOC Compliance Manual, Section 10: Compensation Discrimination (Dec. 5, 2000); 29
C.F.R. § 1620.10.

Once a complainant has met the burden of establishing a prima facie case, 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-

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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)).

Complainant claimed that her starting salary of a GS-7 was too low based on her experience
and education. Complainant noted that when the Agency first offered her the position she
asked the Human Resource Specialist (HRS 1) from the Justice Management Division (JMD) if
she could start as a GS-9 instead of a GS-7. Complainant stated that HRS 1 told her that
management at OIP told him that all FOIA Specialists were brought in at the GS-7 level.
Complainant stated she accepted the GS-7 position based on HRS 1’s statement. Complainant
claimed that during the investigation she received a letter in March 2013, which stated that on
occasion FOIA Specialists started at the GS-9 level. This letter is not in the record.
Complainant claimed there were inconsistencies between HRS 1’s statement and management’s
statement. Complainant claimed there were African-American females in OIP who had
completed their master’s degrees but began working as GS-7s. Complainant also stated there
were White men who had a high school education or a bachelor’s degree who made more
money than African-American females with master’s degrees. Complainant did not provide
the names of the White men or African-American women FCIP FOIA Specialists she
referenced. Complainant also claimed that OIP did not take any steps to begin the process of
getting her a security clearance. Complainant alleged that by hiring her and her female
African-American colleagues as GS-7s and by not pursuing security clearances for them,
management “were keeping African-American women at a certain level where they wouldn’t
have the opportunity to get the more interesting cases, the more higher echelon cases.”

Complainant stated that, in September 2012, more than a year after leaving OIP, she received
a message from a person that she declined to name and only identified as “a former coworker”
at OIP. Complainant stated that person told her about a website that had information available
on federal employees’ salaries. Complainant explained she looked up OIP on the website and
found that her White male former colleagues were GS-11 and higher. Complainant named
Comparative 1 who was a White, male, FOIA Specialist, GS-9, with only a bachelor’s degree.
Complainant stated that she was given increased responsibilities during her time in OIP and
stated Comparative 1 was not given the same level of responsibilities she had and was not
working on expedited cases, as was Complainant. In addition, Complainant stated that
Comparative 2 was a White, male, FOIA specialist who was a GS-11.

The Agency’s witnesses all stated that Complainant and her White male FOIA Specialist
colleagues performed equal work under similar conditions, and that their jobs required equal
skill, effort, and responsibility. The Agency’s witnesses stated, however, that FOIA
Specialists received more complicated assignments as they demonstrated the ability to perform
at higher levels.

The Agency stated that OIP relied on JMD’s Human Resources (HR) Staff to determine the
appropriate GS level for new hires. The Agency stated that all employees hired by OIP under

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the FCIP were hired at the GS-7, Step 1 level. The Agency noted that any variation in pay
between FOIA Specialists resulted from performance-based promotions for which all FCIP
FOIA Specialists were eligible after a year in the program. The Agency noted that FCIP
promotions were not automatic. In addition, the Agency noted that a new hire at OIP would
not work on matters requiring top secret security clearance, and that security clearances were
not typically requested until the employee had been there a year and the senior staff agreed that
the individual was ready to handle classified work. Moreover, the Agency noted that Initial
Request Staff has a small amount of classified work.

The record contains an affidavit from Comparative 1. Comparative 1 stated that he was
Complainant’s coworker and that he was hired as a GS-7 under FCIP. Comparative 1 stated
he has a bachelor’s degree. Comparative 1 stated that all FCIP FOIA Specialists began as GS-
7s and noted that some other coworkers who are not White males make more than he does,
including Employee A and Employee B.2 In response to Complainant’s contention that she
was given more responsibility than him because he was not assigned expedited cases,
Comparative 1 stated that he had multiple requests that were expedited and stated that
Complainant was incorrect in her assertion.

The record contains an affidavit from Comparative 2. Comparative 2 stated he worked as a
FOIA Specialist in OIP from August 2009 until February 2013. Comparative 2 stated that he
and Complainant were coworkers and that initially he was hired as a GS-7 under FCIP.
Comparative 2 stated that when he was hired, he had a bachelor’s degree and had graduated
college with honors.

Upon review, we find Complainant failed to establish that the Agency subjected her to
discrimination with regard to pay. Complainant claimed two White male FOIA Specialists
(Comparative 1 and Comparative 2) were paid more than her for doing equal work.
Complainant stated she discovered this because an unnamed former coworker pointed her to a
website that showed that White, male, FOIA Specialists were GS-9s and GS-11s, while she
was only a GS-7, even though she had more education than Comparative 1 and Comparative 2.
We note that Comparative 1 and Comparative 2 were hired under the FCIP as GS-7s, as was
Complainant. Moreover, all responding officials stated that all FCIP FOIA Specialists were
hired as GS-7s. The record reveals Complainant was terminated from her position prior to
serving a full year with OIP, so she could not have been promoted, per FCIP’s policies.
Comparative 1 and Comparative 2 were not fired and were converted out of FCIP when the
program was revoked in March 2011, and were promoted above GS-7 by 2012. In the present
case, we find the record contains no evidence of discriminatory hiring or pay violations.

Complainant notes that there was a FCIP FOIA Specialist who was hired as a GS-9.
Complainant did not identify the name or sex of this person. The record reveals that FCIP was
2 The record contains affidavits from Employee A and B who were female FOIA Specialists at
the GS-13 and GS-12 grades respectively. Neither Employee A nor Employee B were hired
under FCIP.

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designed to allow applicants to advance through the ranks during the two years they
participated in the program. We find Complainant cannot compare herself to FOIA Specialists
not hired under FCIP – including one individual hired at some point as a GS-9. Additionally,
since Complainant was not eligible for promotion until after serving a year in FCIP, she cannot
compare her starting grade with the grades her former colleagues obtained after she left OIP.

We find that when comparing Complainant against other FCIP FOIA Specialists in their first
year at OIP, there is no indication of disparate treatment. Complainant, her White male FCIP
colleagues, and other FCIP FOIA hires began as GS-7s, were paid the same salary, and
performed the same work. Those FCIP FOIA Specialists with grades higher than GS-7
achieved those grades through lawful performance and time-in-grade promotions unrelated to
sex or race. The record shows that Complainant did equal work for equal pay. Complainant’s
statement that she did more advanced work than Comparative 1 is not supported by the
evidence. Upon review, we find Complainant failed to establish that she was subjected to
discrimination under Title VII or the EPA.

CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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.
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. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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

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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 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

May 6, 2016
Date