01994419
07-06-2000
Jurelene Kenney, Complainant, Louis Caldera, Secretary, Department of the Army, Agency.
Jurelene Kenney v. Department of the Army
01994419
July 6, 2000
Jurelene Kenney, )
Complainant, )
) Appeal No. 01994419
) Agency No. ALAHFO9605G0090
) Hearing No. 170-97-8200X
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
INTRODUCTION
On May 6, 1999, Jurelene Kenney (the complainant) timely filed an appeal
with the Equal Employment Opportunity Commission (the Commission) from a
final agency decision (FAD) dated April 8, 1999, concerning her complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and
the Equal Pay Act of 1963, 29 U.S.C. � 206(d).<1> The Commission hereby
accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant failed to prove that the agency discriminated against her
based on race, color and sex when she was required to perform GS-14 level
duties, and she was notified of her reassignment to a non-supervisory
position.
BACKGROUND
Complainant was employed by the agency as a Supervisory Inventory
Management Specialist, GS-13, at the agency's Army Communications
Electronics Command at Fort Monmouth, New Jersey. Prior to November 1995,
complainant was the GS-13 Branch Chief of one of the commodity sections,
in charge of �overall systems management of a functionally related group
of weapons systems,� which included procuring and distributing components
of the system. She supervised approximately 18 people and claimed to
have the same job duties as the GS-14 Branch Chiefs in her division,
one white male (M-1) and one white female (F-1). After November 1995,
complainant's department was part of a restructuring undertaken by
the agency. Because she was a GS-13, and not a GS-14, complainant
lost her supervisory duties and �Branch Chief� title, and her other job
duties changed. Her new job title was Logistics Management Specialist.
The GS-14 positions became the first-line supervisors for the new
�multi-functional branches.� Complainant claimed that she had been
replaced by a male GS-14 engineer (M-2) who was performing her duties.
Complainant initiated EEO Counseling on November 28, 1995. She filed
a formal complaint on January 29, 1996, alleging discrimination on
the bases of race (African American), color (Black), and sex (female)
when: 1) she was required to perform GS-14 level duties while being
paid at a GS-13 rate, and 2) she was notified of her reassignment to a
nonsupervisory position. Complainant claimed that these were violations
of both Title VII and the Equal Pay Act (EPA). The agency accepted the
complaint for investigation and processing. At the conclusion of the
investigation, the agency issued a copy of its investigative report and
notified complainant of her right to request an administrative hearing.
Complainant timely requested a hearing before a Commission Administrative
Judge (AJ), and the AJ determined that there were no genuine issues of
material fact in dispute and that a decision could be issued without
holding a hearing. Complainant objected to no hearing being held.
The AJ issued her Recommended Decision on March 11, 1999.
The AJ concluded that complainant had not established a prima facie case
of disparate treatment based on race, color or sex for Issue 1 because
she had not shown that there were similarly situated employees who were
treated more favorably than her, or that there was a causal connection
between her protected classes and the agency action. She had not shown a
prima facie case of race, color or sex discrimination on Issue 2 because
she had not shown that there were similarly situated employees who were
treated more favorably than she, in that all of the GS-13 branch chiefs
lost their supervisory positions in the restructuring (all of whom were
not of complainant's protected class). The AJ also concluded that the
complainant had not established a prima facie case of sex-based wage
discrimination under the EPA because she had not shown that her job
was �substantially equal� to that of M-1 because the nature and extent
of the job duties differed. M-1 had second-line as well as first-line
supervisory duties, while the complainant only had first-line supervisory
duties. Additionally, the AJ found that complainant had never requested
a desk audit, which could have shown that her duties were �substantially
equal� to that of the M-1.
The AJ then found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Regarding Issue 1, the agency
claimed that the GS-14 Branch Chiefs had greater responsibilities than
complainant in that they supervised more employees (up to 55) and were
in charge of ordering �major end� items (with larger aggregate monetary
value than what complainant was authorized to order). With regard
to Issue 2, all GS-13 supervisors were converted to non-supervisory
positions, regardless of their sex, color or race. The AJ concluded that
complainant had not shown that the legitimate, non-discriminatory reasons
given by the agency for its actions were pretext for discrimination.
Also, because the complainant had not established a prima facie case
of sex-based wage discrimination by showing that her job duties were
�substantially equal� to those of the M-1, the burden did not shift to
the agency to come forward with one of the affirmative defenses under
the EPA. Despite this, the AJ found that the agency had shown that
any pay differential was �based on a factor other than sex,� namely
that the level and complexity of the work performed by complainant and
M-1 differed. The AJ recommended a finding of no discrimination.
The agency issued its FAD on April 8, 1999. In its FAD, the agency
adopted the Recommended Decision of the AJ. This appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The United
States Supreme Court has stated that summary judgment is appropriate
where the trier of fact determines that, given applicable substantive
law, no genuine issue of material fact exists. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the
evidence is such that a reasonable fact-finder could find in favor of the
non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st
Cir. 1988). In the context of an administrative proceeding under Title
VII, summary judgment is appropriate if, after adequate investigation,
complainant has failed to establish the essential elements of his or
her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173
(3d Cir. 1988). In determining whether to grant summary judgment,
the trier of fact's function is not to weigh the evidence and render a
determination as to the truth of the matter, but only to determine whether
there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.
After a careful review of the record, we find the AJ properly determined
that there was no genuine issue of material fact in this case.
Specifically, we find that complainant failed to set forth sufficient
facts showing that there was a genuine issue still in dispute. Moreover,
complainant failed to provide in this appeal any evidence or argument
that material issues are in dispute. Therefore, we concur in the AJ's
determination and find that summary judgment was appropriate in this
case.
Based on our careful de novo review of the entire record before us,
the Commission finds that the AJ's Recommended Decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We conclude that complainant failed to establish by
preponderant evidence that any of the agency's actions were motivated
by discriminatory animus toward complainant's race, color, or sex,
or were violations of the Equal Pay Act. Accordingly, we discern no
basis to disturb the AJ's Recommended Decision or the agency's adoption
of the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm the agency's final decision.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0400)
You are authorized under section 16(b) of the Fair Labor Standards Act
(29 U.S.C. � 216(b)) to file a civil action in a court of competent
jurisdiction WITHIN TWO YEARS or, if the violation is willful, THREE YEARS
of the date of the alleged violation of the Equal Pay Act regardless of
whether you have pursued any administrative complaint processing. The
filing of the civil action will terminate the administrative processing
of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
_07-06-00________ __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.