0120161208
06-15-2018
Karin C.,1 Complainant, v. Betsy DeVos, Secretary, Department of Education, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Karin C.,1
Complainant,
v.
Betsy DeVos,
Secretary,
Department of Education,
Agency.
Appeal No. 0120161208
Hearing No. 410-2014-00181X
Agency No. ED-2013-FSA-0020
DECISION
On March 2, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 4, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the EEOC Administrative Judge's (AJ) determination that the Agency did not discriminate against Complainant on the bases of sex (female) and reprisal when she was receiving significantly less pay than male co-workers performing substantially similar work is supported by substantial evidence.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Loan Analyst, GS-11 at the Agency's Office of Federal Student Aid - Borrower Services facility in Atlanta, Georgia. The GS-11 level, where Complainant was working, is the top of the Agency's Career Ladder Loan Analyst position. Nevertheless, the Agency has created and advertised GS-12 Loan Analyst positions. While Complainant has applied for the GS-12 position several times, she has not been promoted to this level. Nevertheless, both male and female GS-11 employees have been promoted to the GS-12 position. Complainant believes the GS-11 and GS-12 positions are essentially the same, perform the same work, that more males are promoted to the GS-12 level and that she should be paid at the GS-12 level. Complainant makes no claim that her male GS-11 co-workers are paid more than she is paid.
While the GS-11 and GS-12 Loan Analyst position descriptions share significant similarities, such as an expectancy of having knowledge of federal contracting laws and regulations, the GS-12 position sets forth a "comprehensive knowledge" expectation, as opposed to the "working knowledge" expectation of the GS-11 position. Moreover, the GS-12 positions entail an expectation that the Analyst will "function as a team/project leader," including "scheduling and planning work, coaching, mentoring and training the staff/team members."
The record reveals that of the twenty-six (26) Loan Analysts employed by the Agency, eleven (11) are at the GS-12 level and fifteen (15) are at the GS-11 level. Four (4) of the eleven GS-12s are male and seven (7) are female. Of the 15 GS-11s, three (3) are male and twelve (12) are female.
On July 1, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963 when as of May 24, 2013, she was receiving significantly less pay as a GS-11 Loan Analyst than male GS-12 co-workers performing substantially similar work.
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 EEOC AJ. Complainant timely requested a hearing and the AJ held a hearing on August 28, 2015, and issued a decision on December 15, 2015. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Neither the Complainant nor the Agency submitted contentions on appeal.
STANDARD OF REVIEW
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, at � VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
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).
Once a complainant has met this burden, 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-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)).
The requirement of "equal work" does not mean that the jobs must be identical, but only that they must be "substantially equal." Laffey v. Northwest Airlines, 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).
In the instant matter, assuming Complainant has established a prima facie case of a violation of the EPA, we find that the AJ correctly determined that the Agency established a justified defense of the disparity in pay by the merit system exception. In this regard, the male GS-12 comparators were successfully promoted to the GS-12 level, hence their higher pay grade. While Complainant applied for promotion to the GS-12 level, she was unsuccessful. Other female applicants to the GS-12 level were successful.
With respect to Complainant's reprisal claim, while her other complaint is against the same first-level supervisor, she did not show that she was treated differently after the Agency had knowledge of her other complaint. Specifically, Complainant is still paid at her GS-11 grade, and she filed a separate complaint alleging that she was discriminated against when she was not promoted to the last GS-12 position for which she applied.
CONCLUSION
Based on a thorough review of the record, we find that substantial evidence supports the AJ's finding of no discrimination. Accordingly, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
__6/15/18________________
Date
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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