Keri C.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 2, 2016

0120160503 (E.E.O.C. Nov. 2, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Keri C.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120160503

Hearing No. 480-2012-00702X

Agency No. 200P06912011104042

DECISION

On October 27, 2015, Complainant filed an appeal from the Agency’s October 15, 2015, 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 finding
no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Cook at the
Agency’s Greater Los Angeles Healthcare System (GLAHS) in Los Angles, California.

In August 1999, the Chief Executive Officer of the Agency’s GLAHS notified employees that
363 positions at the GLAHS would be eliminated through an immediate Reduction in Force
(RIF) and Staffing Adjustment (SA). The written notice stated that “the [RIF and SA] process
includes the right of employees to be offered an assignment based on their seniority and other
factors.”

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.
0120160503

2
Prior to the RIF and SA, Complainant was a Cook, WG-7404-06, Step 3, in the Nutrition and
Food Service at the West Los Angeles Medical Center, which is part of the GLAHS.

On February 18, 2000, Complainant was notified in writing by the Agency’s Director of
Human Resources that effective February 20, 2000, pursuant to the RIF, her position would be
changed from Cook, WG-7404-06, Step 3 to Cook, WG-7404-04, Step 0. Complainant was
also notified that she was entitled to retain the grade of WG-06 through February 19, 2002,
and thereafter, would be entitled to pay retention.

On August 16, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American) and sex (female) when:

1. in 2009-2010, the Agency failed to return Complainant to her WG-06 pay grade,
and
2. in February 2000, Complainant was downgraded from a WG-06 position to a WG-
04 position rather than a WG-05 position.

On September 10, 2011, the Agency dismissed Complainant’s complaint pursuant to 29 C.F.R.
§ 1614.107(a)(2), for untimely EEO Counselor contact. Complainant appealed the Agency’s
dismissal to the Commission. In EEOC Appeal No. 0120120084 (March 21, 2012), the
Commission reversed the Agency’s dismissal and remanded the complaint for further
processing.

Thereafter, the Agency conducted an investigation of Complainant’s complaint. During the
investigation of her complaint, Complainant failed to provide an affidavit in response to the
investigator’s request. 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 Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant requested a hearing. On November 28, 2012, the Agency filed a Motion for a
Decision Without a Hearing. Complainant did not file an opposition or response to the
Agency’s Motion. The AJ assigned to the case granted the Agency’s Motion for a Decision
Without a Hearing and issued a decision without a hearing on September 29, 2015.

In his decision, the AJ noted that in February 2000, Complainant and seven other employees
were in Cook, WG-06 or WG-08 positions at the West Los Angeles Nutrition and Food
Service. The AJ noted that Employee 1, Employee 2, and Employee 3 are African-American
and male; Employee 4 and Employee 5 are Asian-Pacific Islander and male; and Employee 6
and Employee 7 are Hispanic and male. The AJ noted that Employee 1 and Employee 6 were
the only two not impacted by the RIF.

The AJ noted that effective February 20, 2000, pursuant to the RIF, Employee 2’s position
was changed from Cook, WG-06, Step 5 to Cook, WG-04, Step 0; Employee 3’s position was
changed from Cook, WG-08, Step 5 to Cook, WG-04, Step 0; Employee 4’s position was
changed from Cook, WG-08, Step 5 to Cook, WG-04, Step 0; Employee 5’s position was
0120160503

3
changed from Cook, WG-06, Step 4 to Cook, WG-04, Step 0; and Employee 7’s position was
changed from WG-06, Step 4 to Cook, WG-04, Step 0.

The AJ noted that in 2009-2010, five employees in Cook positions impacted by the RIF were
still working for Nutrition and Food Service in non-supervisory Cook positions – Complainant,
Employee 3, Employee 4, Employee 5, and Employee 7. The AJ noted that sometime prior to
April 2009, Employee 2 had been selected for a Cook Supervisor position and on April 26,
2009, Employee 2 was promoted from Cook Supervisor, WS-07 to Cook Supervisor, WS-08.

The AJ noted that effective June 18, 2000, Employee 7 was promoted from Cook, WG-04,
Step 0 to Cook, WG-08, Step 4, when he was selected for the position pursuant to a Vacancy
Announcement.

The AJ stated Complainant had the least seniority relative to Employee 3, Employee 4, and
Employee 5. The AJ noted that Complainant was hired by the Agency as a Food Service
Worker, WG-7408-01, effective May 20, 1990, and was promoted to a Cook, WG-7406-06,
effective September 15, 1996. Employee 3 was hired by the Agency as a Food Service
Worker, WG-7408-04 effective November 6, 1988. Employee 4 was hired by the Agency as a
Food Service Worker, WG-7408-01, effective December 7, 1986. Employee 5 was hired by
the Agency as a Food Service Worker, WG-7404-04, effective July 24, 1989, and was
promoted to a Cook, WG-7404-06 effective July 7, 1995.

The AJ noted that effective April 12, 2009, Employee 3 was promoted from a Cook, WG-04,
Step 5 to Cook, WG-06, Step 5.

The AJ noted that effective April 12, 2009, Employee 4 was promoted from Cook, WG-04,
Step 5 to Cook, WG-06, Step 5. Effective January 2, 2011, Employee 4 was promoted from
Cook, WG-06, Step 5 to Cook, WG-08, Step 1, when he was selected for the position pursuant
to a Vacancy Announcement.

The AJ noted that in 2009 – 2010, Employee 5 remained in a Cook, WG-04 position.

The AJ recognized that when Cook, WG-06 vacancies were authorized to be filled in April
2009, selections were made based on priority placement documentation from the RIF in
February 2000, and vacancies were filled based on seniority.

The AJ determined Complainant failed to establish a prima facie case of race or sex
discrimination regarding being downgraded from her WG-06 position to a WG-04 position
rather than a WG-05 position in February 2000. Specifically, the AJ found Complainant had
not established that she was treated less favorably than any similarly situated employees and
had not proffered any other evidence which supported an inference of discrimination.

The AJ noted that although Complainant asserted that she became aware in 2010 that Employee
5 had been downgraded from his Cook, WG-06 position to a Cook, WG-05 position, she
0120160503

4
presented no evidence to support the assertion that Employee 5 was downgraded to a higher
position than Complainant. The AJ noted the undisputed evidence established that in February
2000, Employee 5’s position was changed from a WG-06 to a WG-04 position. The AJ stated
the undisputed evidence also established that the Agency has never had and did not have in the
year 2000 any Cook, WG-05 positions. Further, the AJ noted that the undisputed evidence
established that each and every one of the Cook employees impacted by the RIF in February
2000, was downgraded to a WG-04 position from their WG-06 or WG-08 position.

The AJ found Complainant established a prima facie case of discrimination regarding not being
upgraded to a WG-06 position in 2009 – 2010, since the evidence established that Employee 3
and Employee 4 were promoted to Cook, WG-06 position in April 2009. The AJ noted that
the Agency asserted that Employee 3 and Employee 4 were selected for WG-06 positions in
April 2009, when vacancies became available and needed to be filled, based on seniority as
required by the priority placement requirements from the February 2000 RIF. The AJ
determined Complainant had not established that there any material facts in dispute regarding
the Agency’s reason for selecting Employee 3 and Employee 4 for the vacancies that needed to
be filled or that the Agency’s reason is a pretext for discrimination. Specifically, the AJ noted
Complainant has not presented evidence which disputes that both Employee 3 and Employee 4
had more seniority than Complainant and that seniority was determinative for filling the
positions impacted by the February 2000 RIF.

With regard to Complainant’s Equal Pay Act Claim, the AJ found Complainant has not
established a prima facie case of discrimination under the Equal Pay Act. The AJ determined
Complainant has not presented evidence establishing that she received less pay than any male
employee for equal work, requiring equal skill, effort, and responsibility, under similar
working conditions.

The AJ stated that assuming arguendo that Complainant established a prima facie case of an
EPA violation, the Agency affirmatively established that any difference in pay received by
Complainant relative to the male Cook employees at the Nutrition and Food Service at the
West Lost Angeles Medical Center was based on a factor other than sex. Specifically, the
Cook employees’ pay was based on being entitled to retain their pre-RIF grade for a period of
time after the RIF, and being entitled to pay retention for a period of time after the RIF.

The AJ concluded there was no evidence that the grade retention or pay retention were
themselves not gender-neutral, or that the Agency’s reliance thereon was a pretext for sex
discrimination. Thus, the AJ found any pay differential between Complainant and other male
Cook employees was not discriminatory.

The Agency subsequently issued a final order on October 15, 2015. The Agency’s final order
fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected
her to discrimination as alleged.

0120160503

5
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 Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (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”).

Upon review of the record, we find that the AJ properly found that the present complaint was
suitable for summary judgment. We note that the record is adequately developed and there are
no disputes of material fact.

We first address Complainant’s claim that she was subjected to discrimination when she was
downgraded from her WG-06 position to a WG-04 position rather than a WG-05 position in
February 2000. Upon review, we find Complainant has not established that she was treated
differently than any similarly employees. The record reveals that all Cook employees
impacted by the RIF in February 2000, were downgraded to a WG-04 position from their WG-
06 or WG-08 positions. While Complainant claims that Employee 5 was downgraded to a
WG-05 instead of a WG-04, she presented no evidence to support this assertion. In addition,
the record established that in February 2000, Employee 5’s position was changed from a WG-
06 to a WG-04 position. Moreover, the record reveals that the Agency never had a Cook,
WG-05 position. Finally, we note that Complainant has not presented any evidence supporting
an inference that her race or sex was a factor in the decision to downgrade her position from a
WG-06 to a WG-04 during the RIF in February 2000.

We find Complainant has established a prima facie case of discrimination with regard to her
contention that her position was not upgraded to a WG-06 in 2009 – 2010, as she established
that Employee 3 and Employee 4, were promoted to Cook, WG-06 positions in April 2009.

The Agency established legitimate, nondiscriminatory reasons for its actions in asserting that
Employee 3 and Employee 4 were selected for WG-06 positions in April 2009, when vacancies
became available, based on their seniority as required by the priority placement requirements
from the February 2000 RIF. Complainant failed to present any evidence that the Agency’s
reasons are a pretext for discrimination. Specifically, we note that Complainant has not
presented any evidence disputing that Employee 3 and Employee 4 had more seniority than her
or disputing that seniority was the determinative factor for filling those positions.

0120160503

6
Next we address Complainant’s contention that the Agency violated the EPA. 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 present case, even if Complainant had established a prima facie case of discrimination
under the EPA, we find that any difference in pay was justified by a factor other than sex. We
agree with the AJ that the Cook employees’ pay was based on being entitled to retain their pre-
RIF grade for a period of time after the RIF, and being entitled to pay retention for a period of
time after the RIF. Complainant simply was earning less salary than some other Cooks pre-
RIF (that pre-RIF period of time is not a claim in this complaint) and she failed to show that
there was any WG-05 position as she maintained.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

0120160503

7
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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), 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. The requests 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 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.

0120160503

8
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

November 2, 2016
Date