0120082229
09-10-2009
Jessie B. Harvey, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jessie B. Harvey,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120082229
Hearing Nos. 120-2004-00282X and 120-2003-00190X
Agency Nos. 2004-0652-2005103106
2004-0652-2003102438
2004-0652-2002103456
DECISION
On April 11, 2008, complainant filed an appeal from the agency's March
12, 2008 final order 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
ISSUE PRESENTED
Whether substantial evidence supports the Administrative Judge's (AJ)
conclusion that complainant was not subjected to reprisal and race and
sex discrimination.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a GS-9 Human Resources Specialist in the Employee Relations Section of
the Human Resources Management Service at the Richmond, Virginia Veterans
Affairs Medical Center. In this position, complainant primarily managed
the agency's worker's compensation program. Complainant began performing
these duties as a GS-7 and was promoted by accretion of duties to GS-9
on March 25, 2001.
In July 2002, complainant filed an EEO complaint in which she alleged
the following:
1. The agency discriminated against her on the bases of race (black),
sex (female), and in reprisal for prior protected EEO activity when it
failed to select her for vacancies from 1989 to 2001;
2. The agency subjected her to discrimination on the bases of race and
sex when she was not paid at the GS-11 level as have similar employees,
in violation of the Equal Pay Act; and,
3. The agency subjected her to discrimination on the bases of race, sex,
and in reprisal for previous EEO activity when it failed to promote her
to the GS-11 level and paid her at the GS-9 level rather than at the
GS-11 level, in violation of the Equal Pay Act.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing, and the AJ held a hearing on September 14, 2005
and October 5, 2005.
During the hearing, complainant testified that she has performed the
same work at the GS-9 level that a male Human Resources Specialist (C)
performed at the GS-11 level. She testified that C was paid at the
GS-11 level as a Human Resources Specialist from March 1994 through
June 1995, and she performed the same worker's compensation duties that
C performed.
Complainant further testified that she took over his worker's compensation
duties after C became a supervisor. Complainant stated that she requested
a promotion on May 31, 2002 and in early 2005. Complainant testified
that on June 15, 2005, the agency non-competitively promoted a white
female (C2) to the GS-11 level but refused to promote complainant.
C2 was responsible for disciplinary charges in the Employee Relations
section of the agency.
C testified that he was promoted to Supervisory Human Resources
Specialist, GS-12, in June 1995 through the competitive process and became
complainant's first-line supervisor. C testified that while he was a
GS-11 Human Resources Specialist, he worked with hospital employees,
supervisors, and physicians; opposed employees' OWCP claims; developed
light duty jobs; sought to keep costs at a minimum by not allowing
employees to extend the OWCP benefit beyond the period that was needed;
worked with the agency and employees to return employees to duty; and,
trained supervisors on OWCP techniques. C further testified that he
worked on "numerous special projects" for management. Hearing Transcript,
p. 70.
C further testified that in 1997, the agency hired a registered nurse who
assumed many of the duties he previously had, including opposing OWCP
claims, developing light duty assignments, and making job placements.
C stated that he promoted complainant to GS-9 in March 2001 because a
gradual accretion of her duties occurred as she assisted and trained the
nurse. C stated that he denied complainant's 2002 request for promotion
to the GS11 level because he determined that her job duties had been
"split up" and many of the higher graded duties were performed by the
registered nurse. He further testified that the higher graded tasks that
the nurse took over included opposing OWCP claims and job placements.
C testified that parceling out the higher graded OWCP duties to the
nurse created a "lid" that precluded complainant from attaining the
GS-11 level through accretion of duties. Transcript, pp. 105, 106.
C stated that when complainant complained that she was too busy, he took
away collateral tasks such as processing leave, training, and foreign
travel planning and gave these tasks to another employee in 2002 or 2003.
C stated that he has never given an employee an accretion of duties
promotion after an employee has been at a grade level for only a year
because such promotions should generally occur after an extended period
of time at the grade level. C stated that he promoted C2 to the GS-11
level because through the accretion of duties, she performed GS-11 duties
and worked independently.1
Complainant's second-level supervisor testified that C2 was promoted
because she was performing duties at the GS-11 level by independently
preparing matters for disciplinary and adverse action. He stated that
complainant was not promoted to the GS-11 level because she was only
performing at the GS-9 level.
In a decision dated March 6, 2008, the AJ found no discrimination.
Specifically, with respect to claim 1, the AJ determined that complainant
failed to show that she applied for any particular vacancies and did
not provide "any evidence whatsoever to prove this claim." Regarding
complainant's Equal Pay Act claims, the AJ determined that complainant
failed to establish a prima facie case under the Equal Pay Act because
she did not show that a male employee was paid higher wages for equal
work. The AJ concluded that many of C's higher graded duties, such
as writing letters of Office of Worker's Compensation (OWCP), creating
light duty assignments, returning employees to duty, and communicating
with physicians, were primarily the responsibility of a registered nurse
hired in 1997, not complainant.
The AJ also analyzed claims 2 and 3 under Title VII and found
that complainant did not establish a prima facie case of race or sex
discrimination because she did not show that she was similarly situated to
C or C2. The AJ further concluded that although complainant established
a prima facie case of reprisal for claims 2 and 3, she failed to show that
the agency's non-discriminatory explanations were pretext for reprisal
or discrimination. The agency subsequently issued a final order fully
adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred in finding no
discrimination. Complainant argues that while the agency contends that
she performs less complex work than C performed in the Human Resources
Specialist position, it failed to specify how her work duties are less
complex. Complainant further argues that while the agency added a nurse
to work on OWCP matters, the nurse serves as a medical resource and does
not perform the administrative functions that complainant performs.
Complainant contends that C's testimony is the only evidence that C
performed higher graded duties while he was in the GS-11 Human Resources
position. Complainant further contends that testimony that C performed
special projects while in the position is irrelevant because the position
description did not include special projects as a job duty.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Non-Selections
Complainant contends that the agency retaliated and discriminated against
her when it failed to select her for vacancies from 1989 until 2001.
The AJ determined that complainant did not prove this claim because she
did not show any vacancies that she applied for and did was not selected.
We note that when complainant was asked by agency counsel if she applied
for specific positions, she testified that she could not remember if
she applied for the positions, although she thought she had applied.
Hearing Transcript, p. 203. On appeal, complainant contends that she
applied for and was not selected for a GS-9 Human Resources Specialist
position in November 2003 and a GS-7 Employee Relations Specialist
position in May 1997, but we decline to address this belated assertion
on appeal because complainant was provided ample opportunity to present
this evidence at the hearing but failed to do so.2 Thus, we find that
substantial evidence supports the AJ's finding of no discrimination with
respect to claim 1.
Wage Discrimination
In this case, complainant contended that she was not paid the same as a
Human Resources Specialist at the GS-9 level as a male Human Resources
Specialist who was paid at the GS-11 level. Assuming arguendo that
complainant established a prima facie case of discrimination and
reprisal, we nonetheless find that the agency provided legitimate,
non-discriminatory reasons for its actions. Specifically, the agency
explained that complainant was not paid the same as C because many
of the higher graded duties that C performed such as creating light
duty assignments, returning employees to regular duty, and writing
letters to oppose OWCP claims were transferred to the new nurse.
Additionally, unlike complainant, C worked on special projects, was
tasked with reducing OWCP claims, and did not have a nurse to assist him.
Complainant contends that performance of special projects is irrelevant
to pay because such projects were not part of the Human Resources
Specialist position description; however, we determine that these
duties are a valid consideration in determining the appropriate pay.
To the extent that complainant contends that she was not paid the same
or given the same detail opportunities as C2, we determine that C2 is
not similarly situated to complainant because C2 performed different
duties than complainant. Thus, we conclude that substantial evidence
supports the AJ's determination that complainant failed to prove that
the agency's explanations were pretext for unlawful discrimination.
Therefore, we find that the AJ properly found no violation of Title VII.
Complainant's wage discrimination claims can also be analyzed under the
Equal Pay Act (EPA). The U.S. 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, 195 (1974). To establish
a violation of the EPA, a complainant must show that he or she 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. Id. at 195; Sheppard v. Equal Employment
Opportunity Commission, EEOC Appeal No. 01A02919 (September 12, 2000);
see also 29 C.F.R. � 1620.14(a).
Once a complainant has met her burden of establishing a prima facie
case, an employer may avoid liability only if it can prove that the pay
difference is justified under one of the four affirmative defenses set
forth in the EPA, namely: (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 an incentive or piecework system); or (4)
a differential based on any other factor other than sex. 29 U.S.C. �
206(d)(1); Corning Glass Works, 417 U.S. at 196-97; Kouba v. Allstate
Insurance Co., 691 F.2d 873 (9th Cir. 1982). The requirement of
"equal work" does not mean that the jobs must be identical, but only
that they must be "substantially equal." Id. (citing Corning Glass
Works, 417 U.S. at 203, n. 24; Homer v. Mary Institute, 613 F.2d 706,
714 (8th Cir. 1980); Laffey v. Northwest Airlines, Inc., 567 F.2d 429,
449 (D.C. Cir. 1976)).
In this case, we concur with the AJ's finding that complainant failed to
establish a prima facie violation of the Equal Pay Act because she did not
show that C was paid higher wages for equal work. As discussed above,
C had the primary responsibility to oppose OWCP claims, create light
duty assignments, return employees to regular duty, and communicate
with physicians, whereas complainant shared these duties with a newly
hired nurse. In addition, C distinctly worked on special projects and was
charged with reducing skyrocketing OWCP costs. We find that substantial
evidence supports the AJ's conclusion that complainant failed to prove
that the agency violated the EPA.3
CONCLUSION
Accordingly, based on a thorough review of the record, the Commission
affirms the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 9-18 (November 9, 1999). 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 (S0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____9/10/09_____________
Date
1 We note that C retired from the agency effective April 28th, 2006.
2 We note that when asked at the hearing if she applied for the GS-9
Human Resources Specialist position, complainant merely stated, "I think I
did. I can't remember." Hearing Transcript, p. 203. When further asked
to identify the positions that she applied for, complainant responded,
"If you are told that you are not going to get a promotion because you
filed an EEO complaint, what am I applying for?" Transcript, p. 204.
3 We note that complainant ultimately was promoted to the GS-11 level
on September 2, 2007.
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0120082229
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120082229