Lori A. Adams, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 17, 2000
01992806 (E.E.O.C. Nov. 17, 2000)

01992806

11-17-2000

Lori A. Adams, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Lori A. Adams v. Dept. of Veterans Affairs

01992806

November 17, 2000

.

Lori A. Adams,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01992806

Agency No. 96-0646

Hearing No. 270-96-9096X

DECISION

Complainant timely initiated an appeal from the agency's final decision

(FAD) concerning her equal employment opportunity (EEO) complaint of

unlawful 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.<1>

Complainant alleges that the agency discriminated against her on the

basis of her sex (female) when she was paid a GS-101-09 salary while

performing duties comparable to those of male colleagues paid at the

GS-101-11 level. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

For the following reasons, the Commission REVERSES the agency's FAD.

The record reveals that complainant, a GS-101-9 Addiction Therapist

assigned to the Drug Expansion Program at the agency's Medical Center

in New Orleans, Louisiana (�facility�), claimed that there were male

Addiction Therapists employed at the facility who had the same level

of experience and performed the same job functions as she did, but

were paid at the GS-101-11 grade level solely due to their gender.

Complainant filed a formal EEO complaint with the agency on October

31, 1995, alleging that the agency had discriminated against her as

referenced above. At the conclusion of the investigation, complainant

was provided a copy of the investigative report and requested a hearing

before an EEOC Administrative Judge (AJ). Following a hearing, the AJ

issued a decision finding gender and wage-based discrimination.

Gender Discrimination

The AJ concluded that complainant established a prima facie case of gender

discrimination as she is a member of a protected group due to her sex,

and similarly situated male employees performed substantially the same

work as did complainant but were paid at the GS-101-11 grade level. In so

finding, the AJ found after consideration of the evidence that complainant

was performing substantially the same duties as one comparative male

Addiction Therapist (C1), whose position was graded at the GS-101-11

level from 1994 through 1996, and was also performing substantially

the same duties as another comparative male Addiction Therapist (C2)

whose position had been graded at the GS-101-11 level since 1992. The AJ

then concluded that the agency articulated legitimate, nondiscriminatory

reasons for its actions, namely, that an agency desk audit stated that

the duties performed by C1 and C2 were more complex than complainant's

duties in part as they included �team leader� responsibilities, and thus

the male employees merited being paid at a higher grade. The AJ further

noted the agency's testimony that C1 was classified as a career ladder

promotion to the GS-101-11 level, and that C2 was later downgraded to

the GS-101-9 level.

However, the AJ found that complainant established that it was more

likely than not that the reasons provided by the agency were a pretext

for discrimination. In reaching this conclusion, the AJ found that

despite the desk audit, there was no appreciable difference in the work

performed by complainant, C1 and C2, and further that the agency's

statements regarding the reasons C1 and C2 were classified at the

GS-101-11 grade level were unworthy of credence. In finding the agency's

reasons pretextual, the AJ noted that complainant, C1 and C2 worked at the

same facility, counseled veterans and their families who were victims of

substance abuse, worked with physicians and reported to a supervisor, thus

they had the same duties except team leader responsibilities which the AJ

found to be non-grade controlling. The AJ thus found that complainant

was discriminated against on the basis of her gender when she was not

promoted to the GS-101-11 level.

Wage Discrimination

The AJ found that as complainant alleged that she performed the same

work as male colleagues but received lower pay, her allegation �amounted

to a claim under the [Equal Pay Act] EPA or Title VII of sex-based wage

discrimination.� The AJ noted that as complainant did not allege a

violation of the EPA, her claim was analyzed under Title VII. The AJ

found that complainant established a prima facie case of sex-based

wage discrimination, as she is a member of protected groups and was

performing the same work as male counterparts but was paid less. The AJ

further found that the agency failed to meet its burden in providing

an appropriate affirmative defense, as the evidence established that

complainant, C1 and C2 were performing equal work, requiring equal skill

and responsibilities and under similar working conditions. The AJ noted

that while the agency justified C1 and C2 being graded at the GS-101-11

level as they performed �team leader� duties, these duties were non-grade

controlling. As such, the AJ found that the agency discriminated against

complainant due to her sex when it failed to promote her to Addiction

Therapist GS-101-11.

The agency's FAD rejected the AJ's decision and found that the agency had

not discriminated against complainant when it failed to promote her to a

GS-101-11 Addiction Therapist position. The FAD found that the agency's

desk audit established that complainant was not performing essentially

the same duties as the GS-101-11 comparators, and thus complainant's

position was properly graded at the GS-101-09 level. Complainant contends

on appeal that the agency systematically discriminated against female

Addiction Therapists by failing to promote them to the same grade levels

as comparative males. The agency responds, urging affirmance of the

FAD.

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). In addition, the Commission notes that it will

not disturb the credibility determinations of an AJ where, as here,

the determinations are based on the credibility of the witnesses.

Esquer v. United States Postal Service, EEOC Request No. 05960096

(September 6, 1996). An AJ's credibility determinations are entitled

to deference due to the judge's first-hand knowledge through personal

observation of the demeanor and conduct of the witnesses at the hearing,

but this deference is not automatic. Esquer, supra.

Although the AJ found that complainant did not assert a claim under

the Equal Pay Act (EPA) and thus analyzed her claim under Title VII,

the Commission will consider complainant's claim of gender-based pay

discrimination under the standards set forth in the EPA. The U.S. 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, 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 gender for equal work, requiring equal skill,

effort and responsibility, under similar working conditions within the

same establishment. Id. at 195; Arnold v. Department of the Treasury,

EEOC Appeal No. 01960490 (July 28, 1998) See also 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 the

four affirmative defenses set fourth 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 an incentive

or piecework system); or (4) a differential based on any other factor

other than sex. 29 U.S.C. �206(d)(1); Corning Glass Works, 417 U.S. at

196-97; Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982).

Job classification systems qualify as a �factor other than sex� only if

the systems accurately reflect job duties and/or employee qualifications.

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

identical, but only that they must be "substantially equal<2>." Corning

Glass Works 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).

After a careful review of the record, the Commission finds that the AJ's

decision summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We discern no basis to disturb the

AJ's decision. The Commission initially agrees with the AJ's finding

that complainant demonstrated that she was discriminated against on the

basis of her gender when she was paid a GS-101-09 salary while performing

duties substantially similar to those of male Addiction Therapists paid

at the GS-101-11 level. In addition, although the agency maintained

that complainant was graded at the GS-101-09 level due to an internal

classification system and confirmed by agency desk audits, we find that

the agency failed to meet its burden under the EPA in establishing

a valid affirmative defense to the presumption of gender-based wage

discrimination. As the AJ noted, a job classification system is not a

defense to a prima facie case of gender-based wage discrimination if an

investigation shows that it does not accurately reflect the actual duties

performed by individuals in the different classifications. We find that

a review of the record supports the AJ's conclusion that complainant

was performing substantially equal work as were the comparative male

Addiction Therapists who were graded at the GS-101-11 level. The AJ

noted that the difference in their work was minimal despite the agency's

classification system, and the alleged differences listed by the agency

are at odds with the desk audits. As the record reflects that complainant

and her male comparators were performing substantially equal work, the

fact that the agency performed three desk audits and each time concluded

that complainant was properly graded does not carry the agency's burden.

Additionally, the Commission declines to disturb the AJ's finding that

the agency's reliance on C1's career ladder promotion and C2's subsequent

downgrade is unworthy of credence.

Therefore, after a careful review of the record, including complainant's

arguments on appeal, the agency's response, and arguments and evidence

not specifically discussed in this decision, the Commission finds that

complainant was subjected to discrimination, REVERSES the agency's final

decision and REMANDS the matter to the agency to take remedial actions

in accordance with this decision and the ORDER below.<3>

ORDER

The agency is ORDERED to take the following remedial action:

1. The agency shall promote complainant to the GS-11 level retroactive to

June 14, 1992 and credit complainant with all appropriate step increases

which she would have been entitled to from June 12, 1992 to the present.

2. The agency shall determine the appropriate amount of back pay,

interest, and other benefits due complainant, pursuant to 29 C.F.R. �

1614.501, from the period of June 14, 1992 to the present. The agency

shall complete this action within sixty (60) calendar days of the date

that this decision becomes final. The complainant shall cooperate in the

agency's efforts to compute the amount of back pay and benefits due, and

shall provide all relevant information requested by the agency. If there

is a dispute regarding the exact amount of back pay and/or benefits,

the agency shall issue a check to the complainant for the undisputed

amount within sixty (60) calendar days of the date the agency determines

the amount it believes to be due. The complainant may petition for

enforcement or clarification of the amount in dispute. The petition for

clarification or enforcement must be filed with the Compliance Officer,

at the address referenced in the statement entitled "Implementation of

the Commission's Decision."

3. Within thirty (30) days of the date this decision becomes final,

the issue of damages is REMANDED to the Hearings Unit of the appropriate

EEOC field office. Thereafter, the Administrative Judge shall issue a

decision on this issue if accordance with 29 C.F.R. � 1614.109, and the

agency shall issue a final action in accordance with 29 C.F.R. � 1614.110

within forty (40) days of receipt of the Administrative Judge's decision.

The agency shall submit copies of the Administrative Judge's decision

and the final agency action to the Compliance Officer at the address

set forth below.

4. The agency shall take all appropriate corrective, curative or

preventive action to ensure that similar violations of the law will not

recur. Such action shall include reviewing and revising agency policies

and procedures relating to the investigation and prevention of gender and

wage discrimination so as to provide prompt and thorough investigation

of such complaints, and appropriate and effective remedial corrective

actions in response to such complaints.

5. The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay, compensatory damages, and other benefits

due complainant, including evidence that the corrective action has been

implemented.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement of

the order. 29 C.F.R. � 1614.503(a). The complainant also has the right

to file a civil action to enforce compliance with the Commission's order

prior to or following an administrative petition for enforcement. See 29

C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,

the complainant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action

for enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the

complainant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

POSTING ORDER (G0900)

The agency is ordered to post at its Medical Center, New Orleans,

Louisiana, facility copies of the attached notice. Copies of the notice,

after being signed by the agency's duly authorized representative, shall

be posted by the agency within thirty (30) calendar days of the date

this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

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

(R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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 17, 2000

__________________

Date

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Washington, D.C. 20507

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated ______________ which found that

a violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq. has occurred at the Department of

Veterans Affairs Medical Center in New Orleans, Louisiana.

Federal law requires that there be no discrimination against any employee

or applicant for employment because of the person's RACE, COLOR, RELIGION,

SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect

to hiring, firing, promotion, compensation, or other terms, conditions

or privileges of employment.

The Department of Veterans Affairs Medical Center in New Orleans,

Louisiana supports and will comply with such Federal law and will not

take action against individuals because they have exercised their rights

under law.

The Department of Veterans Affairs Medical Center in New Orleans,

Louisiana, has been found to have discriminated against the individual

affected by the Commission's finding on the basis of her gender by

failing to compensate her at the same level as male colleagues who were

performing substantially equal work, requiring equal skill, effort

and responsibility. The Commission has ordered that this individual

be promoted to the GS-101-11 level and receive appropriate back pay,

with interest. The Department of Veterans Affairs Medical Center in

New Orleans, Louisiana, will ensure that officials responsible for

personnel decisions and terms and conditions of employment will abide

by the requirements of all Federal equal employment opportunity laws

and will not retaliate against employees who file EEO complaints.

The Department of Veterans Affairs Medical Center in New Orleans,

Louisiana, will not in any manner restrain, interfere, coerce, or

retaliate against any individual who exercises his or her right to oppose

practices made unlawful by, or who participates in proceedings pursuant

to, Federal equal employment opportunity law.

Date Posted: _____________________________

Posting Expires: _________________________

29 C.F.R. Part 1614

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 29 C.F.R. Part 1614, where applicable,

in deciding the present appeal. The regulations, as amended, may also

be found at the Commission's website at www.eeoc.gov.

2 The Commission notes that unlike the EPA, Title VII does not

require �substantially equal� work, but allows for comparisons

of jobs between persons who are similarly situated. See, e.g.,

Crockwell v. Blackmon-Mooring Steamatic, Inc., 627 F.Supp. 800, 806

(W.D. Tenn. 1985).

3 We next note that claims of wage discrimination based on sex can

be brought under the EPA or can be pursued directly under Title VII.

The claims are not mutually exclusive and both avenues of relief can

be pursued simultaneously. See 29 C.F.R. � 1620.27. We note that an

individual may recover under both the EPA and Title VII for the same

period of time so long as the same individual does not receive duplicate

relief for the same wrong. Relief is computed to be the highest benefit

either statute would provide. Pursuant to the provisions of 29

U.S.C. � 206(d)(1), an employer who violates the EPA "shall be liable to

the employee ... in the amount of [her] unpaid minimum wages ... and in

an additional equal amount as liquidated damages." Under 29 U.S.C. �260,

"if the employer shows to the satisfaction of the court that the act

or omission giving rise to such action was in good faith and that he

had reasonable grounds for believing that his act or omission was not a

violation... the court may, in its sound discretion, award no liquidated

damages or award any amount thereof not to exceed the amount specified

in section 216."