Jurelene Kenney, Complainant, Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJul 6, 2000
01994419 (E.E.O.C. Jul. 6, 2000)

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.