Linda S. Clark, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 2, 2000
01994146 (E.E.O.C. Nov. 2, 2000)

01994146

11-02-2000

Linda S. Clark, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Linda S. Clark v. Department of Veterans Affairs

01994146

November 2, 2000

.

Linda S. Clark,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01994146

Agency No. 980135

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) 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, as amended,

29 U.S.C. � 206(d) et seq.<1> The appeal is accepted pursuant to 29

C.F.R. � 1614.405. Complainant alleged that she was discriminated against

on the bases of sex (female) and reprisal (prior EEO activity) when:

(1) she was paid less than male pharmacists performing substantially

the same work; and,

(2) the Chief and Assistant Chief of Pharmacy used their positions

and influence to negatively affect her salary.

BACKGROUND

The record reveals that during the relevant time, complainant

was employed as a GS-11, Step 9 pharmacist at the agency's Biloxi,

Mississippi facility. Believing she was a victim of discrimination,

complainant sought EEO counseling and, subsequently, filed a formal

complaint on September 2, 1997. At the conclusion of the investigation,

complainant was informed of her right to request a hearing before an EEOC

Administrative Judge or alternatively, to receive a final decision by

the agency. When complainant failed to respond within the time period

specified in 29 C.F.R. Part 1614, the agency issued a final decision.<2>

In its FAD, the agency concluded that complainant failed to establish

a prima facie case under the Equal Pay Act (EPA). The FAD noted that

complainant did not have a job that was substantially equal to the jobs of

either of the higher-paid male pharmacists whom she named as comparators.

The agency then found that complainant failed to establish a prima facie

case of sex discrimination under Title VII, noting that the comparative

male employees named by complainant were not similarly situated to her,

in that they performed different jobs with different responsibilities.

The agency went on to articulate a legitimate nondiscriminatory reason for

its actions. Specifically, the agency noted that the male comparators

were paid more because they had different job responsibilities than

complainant. The agency found that the fact that complainant was a

doctor of pharmacy (referred to as a �Pharm. D� in the record) did not

establish pretext because the possession of an advanced degree does not

entitle one to a higher salary under the agency's pay system. The agency

concluded that complainant failed to establish that the salary disparity

was due to gender discrimination.

CONTENTIONS ON APPEAL

On appeal, complainant argues that her complaint entailed the

following issues: (1) whether she was subjected to sex and/or reprisal

discrimination when the agency did not inform her that her salary could

be negotiated when she applied for appointment, yet allowed males

to negotiate their salaries; (2) whether she was subjected to sex

discrimination when the agency failed to award her the appropriate steps

for each of her achievements under the Special Advancement Achievements

criteria; and (3) whether she was subjected to sex discrimination in

violation of the EPA when the agency consistently boarded and approved

males for appointments at higher salaries and GS pay grades than it did

complainant, even though she was performing substantially the same work.

Complainant contends that accepting the argument that the named

comparators held different jobs and had different responsibilities, would

give employers �the green light� to discriminate. She reiterates that

the functional statements of her job and that of one of the comparators

(TA) are basically the same. She argues that her position requires skills

and responsibilities equal to and, at times, greater than, TA's position.

She also contends that her position should be a GS-12 position according

to agency standards.

Finally, complainant argues that even though she did not expressly

mark retaliation as a basis for her complaint, she alleged and stated

throughout the investigation that she believed she was being discriminated

against due to her prior EEO activity.

The agency responds that the issues accepted for investigation only

included whether complainant was being paid a lower salary than two male

pharmacists due to her sex, and whether the Chief and Assistant Chief of

Pharmacy Service used their positions and influence to determine this

lower salary. The agency also argues that reprisal was never formally

raised as a basis of the complaint.

The agency reiterates the basis of its FAD, briefly responds to the

other issues raised in complainant's appeal brief, and concludes that

complainant failed to establish discrimination.

ANALYSIS AND FINDINGS

As an initial matter, we find that complainant did raise reprisal as a

basis for her complaint. Complainant spoke with the EEO Counselor about

reprisal and indicated in her affidavit that her prior EEO activity

was a motivating factor for the agency's actions. We find that while

complainant may not have formally amended her complaint, the statements

in her affidavit and the counseling report made clear to the agency that

she was alleging reprisal as a basis for the alleged discrimination.

A complainant may amend her complaint to add another statutory basis

for an alleged discriminatory occurrence at any time prior to appeal,

without changing the identity of the claim. See Dragos v. United States

Postal Service, EEOC Request No. 05940563 (January 19, 1995).

In terms of complainant's attempt to reframe the issues of her complaint

on appeal, the broad claim that will be addressed in this decision is

whether complainant is paid less than certain male pharmacists because

of her sex and prior EEO activity. Within this broad claim are smaller

issues, such as whether certain agency officials used their influence to

ensure complainant received this lower salary; whether male applicants

were given the option of negotiating their salaries while females were

not; and whether the Special Advancement Achievements criteria were

improperly followed.

Turning first to complainant's EPA claim, the 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).

A complainant must show that she received less pay than an individual

of the opposite gender for equal work, requiring equal skill, effort

and responsibility, under similar working conditions within the

same establishment. See 29 C.F.R. � 1620.14(a); see also, Telford

v. Department of the Army, EEOC Appeal No. 01973892 (November 2, 1999).

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; or (4) a differential based

on any other factor other than sex. See 29 U.S.C. � 206(d)(1); see also,

Corning Glass Works, 417 U.S. at 196-197.

The requirement of �equal work� does not mean that the jobs must be

identical, but only that they must be �substantially equal.� Corning

Glass Works at 203, n. 24. In the past, courts and the Commission have

looked to whether jobs share �a �common core' of tasks, i.e., whether a

significant portion of the two jobs is identical.� Fallon v. Illinois,

882, F.2d 1206, 1209 (7th Cir. 1989); see also, Telford, supra.

In light of these principles, and after a careful analysis of the record

in its entirety, including the arguments on appeal, the Commission finds

that complainant has failed to establish a prima facie violation of

the EPA. The record establishes that the males cited by complainant

as performing substantially equal work, in fact had very different

responsibilities and performed very different tasks than complainant.

The pharmacy coordinator (MA) named by complainant oversees the

work of other pharmacists and coordinates the entire medical center,

whereas complainant does not oversee any other pharmacists. On appeal,

complainant concedes that MA does not perform substantially equal work

when she focuses her EPA claim on the similarities between her job

and that of the other comparator, referred to as TA. Moreover, while

complainant alleges that TA's job responsibilities are different only

in that they are less than complainant's, the record establishes that

TA's job, unlike complainant's, includes administrative duties. TA is

a Performance Improvement/Quality Assurance pharmacist who, in addition

to performing the duties of staff pharmacists such as complainant, also

analyzes pharmacy program data for performance improvement and coordinates

computer operations with the pharmacy staff and the other departments.

Complainant's job does not involve these coordination/performance

improvement responsibilities.

Turning now to complainant's Title VII claim, disparate treatment

can be established if complainant sets forth evidence of acts from

which, if otherwise unexplained, an inference of discrimination can

be drawn. The agency then has the burden of articulating a legitimate

nondiscriminatory reason for its actions. See Furnco Construction

Corp. v. Waters, 438 U.S. 567, 576 (1978). Complainant must then prove,

by a preponderance of the evidence, that the legitimate reasons offered

by the agency were a pretext for discrimination. See McDonnell Douglas

v. Green, 411 U.S. 792 (1973); Texas Department of Community Affairs

v. Burdine, 450 U.S. 248 (1981).

In this case, we find that complainant has raised an inference of sex

discrimination. A review of the record establishes that between 1995

and 1997 all of the female pharmacists at the Biloxi facility were

GS-11s, whereas half of the male pharmacists were GS-12s or higher.

During these years, there were no female supervisory pharmacists and

only one female pharmacist was promoted, whereas five male pharmacists

received promotions. Moreover, a review of minutes from the agency's

Partnership Council meetings in 1997 reveal that management was concerned

about the disparity in the salaries which existed between male and

female pharmacists. This concern led the presidents of AFGE Local 3968

and1045 (UP1 and UP2) to ask the Assistant Chief of Pharmacy (ACP) why

male pharmacists at the Biloxi station had higher salaries than females.

UP1 testified that when he asked ACP how the Professional Services Board

(PSB)<3> determines the salary a pharmacist would receive, ACP replied

that he asks the males if they wanted more money. UP1 testified that

he then asked if ACP also asked female pharmacists this question and

ACP said that he did not, and that females did not ask for more money.

UP2 recalls this conversation somewhat differently, noting that when

asked why male pharmacists were paid higher salaries, ACP replied that

males asked for more money. In either case, this evidence suggests

that the PBS considered evidence that male applicants could make or

had made larger salaries at another job in determining what salaries to

offer, but did not do the same with female applicants. UP2's version

of this conversation corresponds with ACP's own testimony in that he

noted that two male applicants for pharmacist positions were offered

higher salaries based on evidence that they had received bonafide job

offers from the private sector at higher salaries. Taken together,

this evidence is sufficient to raise an inference that complainant was

subjected to discrimination based on her sex when she was hired at a

lower salary than male pharmacists.

The agency articulated a nondiscriminatory reason for its actions,

namely that TA was paid more than complainant due to his different

job responsibilities. On appeal, the agency further explained that

complainant applied for a GS-11 position in the Medical Service and

that was the position for which she was hired. The agency noted that

all three pharmacists in the Medical Service were GS-11s (one male

and two females, including complainant) and that complainant is paid

more than the male pharmacist in the Medical Service. The agency also

noted that both TA and MA were employed in the Pharmacy Service and had

substantially different functional statements and job responsibilities

from complainant's. Moreover, the record establishes that complainant's

salary is equivalent to that of four of the five GS-11 male pharmacists

in the Pharmacy Service, and greater than both GS-11 female pharmacists

in the Pharmacy Service. The GS-11 male pharmacist with a greater salary

than complainant's was hired more than 10 years before complainant.

In an attempt to establish pretext, complainant offers a number of

arguments. On appeal, she reiterates that the Special Advancement for

Achievement criteria, if correctly applied to her achievements, would

have raised her to a GS-12 position and that the incorrect application

is evidence of discrimination. A review of the file indicates, however,

that these criteria can only be used for within grade advancements and

that complainant received four step increases based on her achievements.

Complainant also argues that while she worked under a different functional

statement than TA, they basically did the same job and that she had

more responsibilities. However, she provides no evidence of this

other than her own testimony and the record indicates that TA had many

administrative responsibilities that complainant did not have. Moreover,

the record establishes that complainant was hired to fil1 a vacancy left

by a male pharmacists who had been a GS-11. Also, the record reveals

that the PSB only had authority to determine the step at which a person

could be hired, not the grade. Since complainant applied for a GS-11

job, the board could only determine at what step she would be hired,

it could not offer her a GS-12 job.

Complainant also notes that there are four Pharm. Ds at the facility and

that while the two males, MA and TA, are GS-13 and GS-12, the two females

are GS-11s. Again, however, the agency is correct in noting that MA

and TA are in a different service than complainant and have different

job duties. Furthermore, there is no dispute that complainant is

sufficiently qualified to be a GS-12 pharmacist. The agency's position

is that they have no GS-12 vacancies, that complainant accepted the

offer for a position she knew to be a GS-11 position, and that the PSB

did not have the authority to offer her a higher grade.

While complainant argued that ACP made it known to male pharmacists

that salaries could be negotiated, but did not inform complainant, a

female, of this opportunity, the evidence she offers on this point only

establishes that the PSB considered the evidence of previous salaries

and bona fide job offers provided by males in determining what salaries

to offer them.<4> Complainant provided no evidence that she offered the

PSB such evidence and they ignored it. Indeed, as noted above, the PSB

gave complainant four step increases based on her experience. Moreover,

there is no evidence that male pharmacists applying for positions

advertised as GS-11 positions were hired as GS-12s. To the contrary,

the record is clear that all three pharmacists within complainant's

service are GS-11s and that complainant's salary is higher than the

GS-11 male pharmacist within her service. Furthermore, the record also

establishes that complainant's salary is equivalent to that of four of

the five GS-11 male pharmacists in the Pharmacy Service.

We note that complainant is correct that there is a disparity between the

salaries and grades of female and male pharmacists at the Biloxi facility.

However, while the arguments made and evidence produced by complainant

are sufficient to raise an inference of discrimination, without more,

she fails to meet her burden of establishing sex discrimination by a

preponderance of the evidence.<5>

Lastly, while complainant established a prima facie case of reprisal

discrimination, the agency articulated a legitimate reason that

complainant failed to establish was a pretext for reprisal discrimination.

The agency reiterated that complainant was hired for the position for

which she applied, a position that was advertised as a GS-11 position

and formerly held by a male GS-11 pharmacist. Complainant did not meet

her burden of establishing that the agency's explanation is, more likely

than not, a pretext for discrimination.

Accordingly, the agency's finding of no discrimination in regard to

complainant's complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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 (S0900)

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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 2, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 The record indicates that complainant mistakenly believed that

investigative summary and analysis was a decision on the merits.

After realizing this, the agency renotified complainant's attorney of

complainant's right to a hearing. When no response was received within

thirty days of the receipt of this notification, the agency issued a FAD.

3 The grade at which a position will be advertised is determined by

the Executive Leadership Committee, based on the application of the

service where the job will be located. The position is then advertised

at that grade and pharmacists apply. The PSB reviews the applications

to determine whether the applicants are qualified for a position at

that grade level. The PSB cannot alter the predetermined grade level of

the position. It can determine the appropriate salary within that grade

level by granting step increases based on factors such as education and

experience, as well as Special Advancement for Achievement factors, which

include achievements such as contributing to an article or book, being a

member of a state regulatory board, and being an agency representative

to a National Health Task Force or Convention. ACP is the chairman of

the PSB and there is a list of GS-12 and GS-11 pharmacists who alternate

service.

4 As noted above, UP1 and UP2 provided different versions of the

conversation they had with ACP. UP2's version corresponds with ACP's

testimony that it was the male applicants who brought up the issue of

more money, rather than members of the PSB. As complainant provided

no further evidence on this point, we are unable to justify crediting

UP1's version over UP2's.

5 The Commission is aware that a finding of sex and race discrimination

due to salary disparity was rendered in a similar case stemming from

the Biloxi, Mississippi facility. See Jones v. Department of Veterans

Affairs, EEOC Appeal No. 01994717 (date of closure not available).

We note, however, that the GS-11 female pharmacist in Jones established

that she was paid less than the GS-11 pharmacists within the Pharmacy

Service, and did not rely on the salary disparity between herself and

higher-grade male pharmacists who performed different duties than she,

as does complainant in the subject case. Moreover, the complainant

in Jones also provided evidence that the PSB, while considering the

current salaries and/or other job offers of male applicants, failed to

consider the evidence in her application concerning her current salary.

While complainant in the case at hand also presented evidence to indicate

that the PSB considered the current salaries and/or job offers of male

applicants, she provided no evidence to establish that her current salary,

other job offers, or other information in her application, was ignored

by the PSB. Indeed, the record establishes that the PSB gave complainant

four step increases in recognition of her education and achievements.