0120070399
07-09-2009
Karen D. Huber, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Karen D. Huber,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120070399
Hearing No. 100-2005-0614X
Agency No. 2042084
DECISION
On October 31, 2006, complainant filed an appeal from the agency's
September 27, 2006 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., the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and the Equal
Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405(a). 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 General Attorney, J-Band (equivalent to a GS-14),1 in the agency's
Office of General Counsel in Renton, Washington. She has been eligible
for a promotion to the K-Band (equivalent to a GS-15) since 1992.
Some time in May 1999, and again on November 7, 2001, complainant's
second-line supervisor recommended complainant for a promotion, which
was denied both times by her third-line supervisor. Employees were
told by management that due to budgetary constraints, no employees
would be promoted. However, complainant learned on January 22, 2004,
that two male employees in another region were promoted to the K-Band
in November 2002.
Complainant later learned through a FOIA request that other male employees
were promoted as well. In total, complainant learned that 9 males,
all located in different geographical regions, were promoted to a GS-15
or equivalent position between February 1997 and August 2002.
The agency provided information for the record that indicates that 12
females and 15 males agency-wide were promoted to the GS-15 level during
those same time frames. Further, the agency asserts that no one was
promoted in complainant's region during that time frame.
Complainant also alleges that the work she performed was at least
comparable to the work performed by the male coworkers who were promoted
to the higher level and paid more.
On February 3, 2004, complainant initiated EEO Counselor contact.
On June 17, 2004, complainant filed a formal complaint of discrimination
alleging disparate treatment on the bases of sex (female) and age (DOB:
12/06/56), and disparate impact on the basis of sex (female), when:
1. In 1999 and 2001, she was not promoted to the K band level (equivalent
GS-15).
Additionally, complainant alleged discrimination on the basis of sex
(female) when:
2. She was denied equal pay for equal work.
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 but subsequently withdrew her request. Consequently,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The agency dismissed complainant's claim 1 for untimely EEO Counselor
contact. Further, the agency found that complainant failed to establish
her prima facie cases of disparate treatment, disparate impact, and
discrimination under the Equal Pay Act. Complainant now appeals to
the Commission.
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
Dismissed Claim
The agency dismissed claim 1 for untimely EEO Counselor contact.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The
Commission has adopted a "reasonable suspicion" standard (as opposed to a
"supportive facts" standard) to determine when the forty-five (45) day
limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. 29 C.F.R. � 1614.105(a)(2).
The agency asserts that complainant knew or should have known of the
alleged discrimination in November 2001, when two male employees retired
and complainant was not promoted into those positions. Further, the
agency asserts that complainant has been eligible for a promotion to
GS-15 since 1992, and therefore should have suspected discrimination
since then.
Complainant, on the other hand, asserts that she did not suspect
discrimination until January 22, 2004, when she learned from another
employee that a male employee was promoted in another region. Complainant
further asserts that she had been told by management in meetings that
there was no room in the budget for promotions; therefore, she was not
suspicious that discriminatory animus motivated the agency's decisions.
We find that complainant reasonably did not suspect discrimination when
her promotions were denied, as she was told that employees were not being
promoted due to budgetary reasons. Further, complainant contacted an
EEO Counselor within 45 days of when she was told that a male employee
was promoted in another region, which is when she reasonably should have
been suspicious that discriminatory animus may have played a role in the
agency's decisions. As a result, we find that complainant's February 3,
2004 EEO Counselor contact was timely, and we will analyze the merits
of claim 1 below.
Disparate Treatment
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, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
To establish a prima facie case in a discriminatory non-selection claim,
complainant must show: (1) she is a member of a protected group; (2) she
applied and was qualified for the position; (3) she was considered for
and denied the position; and (4) a similarly situated individual, not a
member of her protected group, was selected for the position. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03. Generally, complainant may
also set forth evidence of acts from which, if otherwise unexplained,
an inference of discrimination can be drawn. Furnco Construction
Corp. v. Waters, 438 U.S. 557, 576 (1978).
The agency found that complainant failed to establish her prima facie
cases of discrimination because she failed to identify similarly-situated
individuals that were promoted. The agency noted that while complainant
identified male employees within the agency who received promotions, all
of the individuals identified were in different geographical regions
and under different management officials. It is well-established
that in order for comparative evidence relating to other employees
to be considered relevant, all relevant aspects of the employees' work
situation must be identical or nearly identical, i.e., that the employees
report to the same supervisor, perform the same job function, and work
during the same time periods. See Anderson v. Department of Treasury,
EEOC Appeal No. 01A22092 (March 13, 2003); Stewart v. Department of
Defense, EEOC Appeal No. 01A02890 (June 27, 2001); Jones v. United
States Postal Service, EEOC Appeal No. 01983491 (April 13, 2000).
A review of the record establishes that all 9 male employees who were
identified by complainant as comparators were from different geographical
locations, and under different management officials. Further, these
individuals were promoted under different promotion policies than those
used in complainant's region, as the agency did not have a consistent
agency-wide promotion policy until 2004. Complainant failed to identify
any individuals who were promoted and were within her region under the
same management officials; as a result, she failed to identify individuals
who were similarly situated to her. Therefore, we affirm the agency's
finding that complainant failed to establish her prima facie cases of
discrimination.
Disparate Impact
Complainant asserts that the agency's lack of a consistent and coherent
promotion policy had an adverse impact upon females. In order to
establish a prima facie case of discrimination under a disparate
impact analysis, complainant must show that the challenged practice or
policy had a disproportionate impact on members of her protected class.
Specifically, complainant must: (1) identify the specific practice or
policy challenged; (2) show a statistical disparity; and (3) show that
the disparity is linked to the challenged policy or practice. Watson
v. Fort Worth Bank and Trust, 487 U.S. 977 (1988). The burden is on
the complainant to show that "the facially neutral standard in question
affects those individuals [within the protected group] in a significantly
discriminatory pattern." Dothard v. Rawlinson, 433 U.S. 321, 329 (1977);
see also Gaines v. Department of the Navy, EEOC Petition No. 03990119
(August 31, 2000).
If complainant establishes a prima facie case of disparate impact,
the burden shifts to the agency to provide a business justification
for the challenged action. See Section 105 of the Civil Rights Act of
1991, Pub. L. No. 102-166, 105 Stat. 1071 (Nov. 21, 1991). Pursuant to
the Civil Rights Act of 1991, once a prima facie case is established,
the agency has the burden of proving that the challenged practice is
job-related and consistent with business necessity. If the agency
satisfies this burden, complainant may nevertheless prevail if she
identifies an alternative employment practice that would accomplish the
same goal with a less adverse impact on his protected class.
The agency found that complainant failed to establish a prima facie case
of disparate impact discrimination because she failed to show that there
was any statistical disparity linked to a challenged policy or practice.
After a review of the record, we find that complainant's statistical
evidence is not sufficient to show that the agency's promotion practices
disparately impacted females. For example, the agency presented evidence
to show that 12 females were similarly promoted during the same time
frames as the identified 15 males. Consequently, we concur with the
agency's finding that complainant failed to establish her prima facie
case of disparate impact.
Equal Pay
The United States Supreme Court articulated the requirements for
establishing a prima facie case of discrimination under the Equal
Pay Act (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 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. Telford
v. Department of the Army, EEOC Appeal No. 01973892 (Nov. 2, 1999)
(citing Corning Glass Works, 417 U.S. at 195; Arnold v. Department of
the Treasury, EEOC Appeal No. 01960490 (July 28, 1998); 29 C.F.R. �
1620.14(a)). Once the complainant has met this burden, 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 as an incentive or piecework system); or (4) a differential based
on any other factor other than sex. Id. (citing 29 U.S.C. � 206(d)(1);
Corning Glass Works, 417 U.S. at 196-97).
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; Horner 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)). 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).
An analysis of comparative skills and responsibilities is most
problematic when it involves executive or professional employees.
Telford, EEOC Appeal No. 01973892 (citing B. Schlei & P. Grossman,
Employment Discrimination Law, p. 59 (2d ed. Supp. 1991)). The primary
approach in determining the equality of jobs is an analysis of overall job
content. Id. (citing Angelo v. Bacharach Instrument Co., 555 F.2d 1164,
1173 (3rd Cir. 1977)). Courts have looked to whether the jobs share "a
'common core' of tasks, i.e., whether a significant portion of the two
jobs is identical." Id. (citing Fallon v. Illinois, 882 F.2d 1206, 1209
(7th Cir. 1989)). In an EPA case, the focus is not on job descriptions
or titles, but on job requirements and performance. Id. (citing Simkins
Finucan v. Postal Rate Commission, EEOC Appeal No. 01914057 (May 20,
1993)). In that case, we found that a female attorney's job was not
comparable to those of higher-paid male attorneys because we found that,
while some of the job tasks were the same, there was a difference in the
level of the difficulty of assignments and the supervision required. Id.
Here, the record does not contain sufficient information to establish that
complainant performed equal work which required equal skill, effort, and
responsibility compared to the individuals she identifies as comparators.
Complainant admitted that she is not aware of the effort, skill, and
responsibility of the putative comparator employees she identified,
nor was she aware of their day-to-day duties. As a result, complainant
failed to establish a prima facie case of discrimination under the EPA.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision, because a preponderance of the evidence does not establish
that discrimination occurred as alleged.
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
July 9, 2009
Date
Date
1 In 2000, complainant's position classification changed and she was no
longer subjected to the GS pay scale classifications. However, we note
that in the record many of the individuals complainant identifies as
comparators are listed under the GS pay scale classifications.
??
??
??
??
2
0120070399
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120070399
9
0120070399