Maria D. Jones, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 2, 2000
01994717 (E.E.O.C. Nov. 2, 2000)

01994717

11-02-2000

Maria D. Jones, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Maria D. Jones v. Department of Veterans Affairs

01994717

November 2, 2000

.

Maria D. Jones,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01994717

Agency No. 972170

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 race (black) and sex (female) when:

(1) she was hired in September 1996 at GS-11, Step 7, rather than at

a higher step; and

she was not selected for the position of Pharmacist Team Leader,

Outpatient Pharmacy, GS-12, on or about May 7, 1997.

BACKGROUND

The record reveals that during the relevant time, complainant was

employed as a pharmacist, GS-11, Step 7 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 of sex or race discrimination in regard to claim 1

because four white males hired at around the same time as complainant were

hired at lower steps than she. Presumably, the agency concluded from this

that complainant failed to establish that similarly situated individuals

not of her protected classes were treated more favorably than she.

The agency went on to articulate a legitimate nondiscriminatory reason

for its actions. Specifically, the agency concluded that complainant was

hired at a GS-11, Step 7 because this was the same grade and step that

she had held when she last worked for the agency's Michigan facility

a few months previously. Although her salary while in Michigan was

$11,000 greater than the salary offered to her as a GS-11, Step 7 at the

Biloxi station, the agency noted that this was due to the geographical

difference. The agency then concluded that the white male comparators

named by complainant were hired at higher steps not based on their race

or sex, but because one refused to accept the offer, if it meant a pay

cut, and the other offered evidence of competing bonafide job offers at

a higher salary�i.e., these men asked for more money.

The agency concluded that complainant had not established pretext,

noting that the fact that her former pay rate was available to the

Professional Standards Board (PSB) that determined her salary, did not

establish that the board members �took the time� to look at it. Finally,

the agency concluded that �if complainant was the victim of anything,

she was the victim of whatever it was that caused her to resign her

former job and move back to [Biloxi].� <3>

In regard to the nonselection claim, the agency found that complainant did

establish a prima facie case of race and sex discrimination, in that she

applied and was qualified for the job, but was not hired, and the selectee

was a white male. The agency, noted, however that the selectee was

chosen because of his greater experience, not his sex or race. Finally,

the agency concluded that complainant did not establish pretext.

On appeal, complainant notes that she also raised an Equal Pay Act claim.

She then essentially reiterates arguments raised during the investigation.

The agency requests that we affirm its FAD.

ANALYSIS AND FINDINGS

Salary Discrimination

As an initial matter, we note that complainant raised an Equal Pay Act

claim during the counseling sessions and the investigation, clearly noting

that she was alleging discrimination due to the discrepancy between her

salary and the salary of male pharmacists who performed the same job.

Moreover, on appeal, complainant cites the Equal Pay Act. The agency did

not analyze complainant's claim as an Equal Pay Act claim and provided

no response on appeal as to why it neglected to do so.

The U.S. Supreme Court articulated the requirements for establishing a

prima facie violation 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.

In the case at hand, complainant has established a prima facie violation

of the EPA. The record indicates that she receives less pay than four

male pharmacists within her department (Pharmacy Services) who perform

the same job-- Pharmacist, GS-11-- as she. The functional statements

of the duties of these pharmacists are identical, and while this

is not dispositive, it supports a finding that their job duties are

substantially equal. See Miller v. Department of the Navy, EEOC Appeal

No. 01943457 (December 8, 1995). Moreover, in addition to working in the

same department under the same job description within the same facility,

these pharmacists were supervised by the same chain of supervisors.

Complainant testified in her affidavit that she performs the same duties

and has equal or greater responsibilities, due to her work on the evening

shift, than these male pharmacists. She also alleged that she provided

training on how the job was done to some of these male pharmacists. The

agency did not dispute these contentions and, in fact, the Chief of

Pharmacy (CP) agreed that complainant provided training to some of the

GS-11 male pharmacists. Finally, the Assistant Chief of Pharmacy (ACP)

testified that while there are supervisory pharmacists and specialists

within Pharmacy Services who perform different duties than regular

pharmacists, the rest of the pharmacists within the department�which

would include complainant, another female pharmacist and four male

pharmacists, are �staff pharmacists.�<4> Because complainant was paid

less for doing substantially the same job as four male comparators,

we find that she has established a prima facie EPA violation.

As noted above, the agency did not directly address the EPA claim.

However, complainant clearly stated from the beginning of the counseling

process that she was alleging sex discrimination based on her salary.

Moreover, the agency did provide testimony as to why complainant was paid

less than others in her department. Specifically, the agency stated that

two male pharmacists�Y and Z-- refused the salary initially offered by

the agency and indicated that they would only accept the position if paid

more.<5> These men also provided evidence that they were either making

more in a currently held job, or had a job offer with a higher salary.

In contrast, the PSB was not aware that complainant was paid a higher

salary at her previous agency job and when the agency offered her a

GS-11, Step 7 position at a specified salary, she accepted the offer.

The agency did not argue that any of the male pharmacists in complainant's

position were more experienced, had more seniority, performed better,

or had different job responsibilities than complainant. The agency's

argument, in essence, is that complainant's lower salary is justified

by a �differential based on any other factor other than sex,� i.e., that

the PSB was not aware that she had a higher salary at her previous agency

job and that, unlike Y and Z, she failed to ask for a higher salary.

We find, however, that this explanation is insufficient to overcome

the established prima facie violation of the EPA. The agency bears the

burden of proving that the difference in pay between complainant and her

male counterparts is the result of a factor or factors other than sex.

A review of the record indicates that, like Y, complainant's salary at her

previous agency job was significantly higher than the offer made her by

the agency. This information was available to the PSB, just as evidence

of Y's higher current salary was available to them, when it determined

what complainant's salary would be. The agency cannot claim that its

own failure to consider a female's salary history to the same extent

that it considered the salary history of males excuses its violation

of the EPA. Moreover, the agency cannot justify paying a female less

money than males performing the same job by arguing that, unlike her

male comparators, she failed to ask for more money. Accordingly, we find

that the agency has failed to meet its burden of establishing a valid

affirmative defense to the established prima facie violation of the EPA.

We conclude, therefore, that complainant has established a violation of

the EPA and is entitled to the remedies set out below.<6>

In a situation such as this, where the jurisdictional prerequisites of

both the EPA and Title VII are satisfied, any violation of the EPA is

a violation of Title VII. See 29 C.F.R. � 1620.27; see also, Miller.

Furthermore, we believe that the record supports an independent finding

of intentional discrimination in violation of Title VII. Moreover,

because complainant also alleged that she was paid less due to her race,

we now turn to complainant's Title VII claims.

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 Corp. v. Green, 411, U.S. 792

(1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248

(1981).

In determining that complainant did not establish a prima facie case of

sex or race discrimination in regard to the salary issue, the agency

relied on the fact that certain white males hired at around the same

time as complainant, were hired at lower steps, and therefore paid less,

than she. The existence of similarly situated individuals outside of

complainant's protected classes who were not treated more favorably

than she, does not prevent complainant from raising an inference

of discrimination. Indeed, it is clear that complainant has raised

an inference of sex and race discrimination. The record establishes

that three white males and one Asian American male hired for the same

position as she, at the same facility, in the same department, have

higher salaries. Two of these white males and the Asian American male

were hired within a year of complainant. The record also establishes

that both female pharmacists (complainant and a Hispanic female),

in Pharmacy Services in 1997 (i.e., when the record was created) made

less than all the male pharmacists (9 whites and 1 Asian American) and

that only one female pharmacist had been promoted in the past two years

(and this promotion was to a GS-11 position).

The agency's articulated reason for this salary difference is that Y and Z

requested more money.<7> The agency noted that Y had not left his former

job when he applied for a position and indicated that he would not leave

this job if it meant taking a pay cut. The agency further noted that

Z established that he had two competing job offers at a greater salary.

ACP, who was chairman of the PSB that determined complainant's salary,<8>

testified that complainant was offered a position at the same level of

her previous agency position, a GS-11, Step 7. He testified that he

was not aware that in this position she had made $11,000 more than the

salary of a GS-11, Step 7 in Biloxi. CP also testified that he assumed

that because complainant was hired at the same grade and step as she

previously held, she was making the same salary.

We find this articulation to be pretextual. The record establishes that

the information before the PSB when it was determining complainant's

step included not only her previous grade and step, but also her

previous salary. Testimony of ACP makes clear that in determining the

salaries of Y and Z, the PBS considered their current salaries and/or

other job offers.<9> The notion that ACP would have failed to notice

that complainant's previous agency salary was $11,000 greater is not

worthy of belief, given his clear openness to considering evidence of

previous salary and job offers when male applicants were involved. The

testimony of CP and ACP that they were not aware that complainant was paid

a higher amount at a different agency facility and that it was logical

to offer her a job at the same position and grade is equally unworthy

of belief. Both CP and ACP have worked at the VA for over 13 years and

both acknowledged awareness of the fact that different facilities paid

greater salaries for the same grade and step.

The record establishes that when white male pharmacists applying for the

same job as complainant provided evidence that they could obtain more

money elsewhere, that evidence was considered. When the application

of complainant--a Black female--clearly noted that she was paid more

than $57,000 at her previous agency job, that information was somehow

overlooked and her salary offer of $46,641 was based solely on her

previous grade and step. After reviewing the agency's reasons for these

differences, the only believable explanation for the lower salary offered

to complainant is her race and sex. Moreover, the agency does not even

attempt to explain why complainant, a black female, is paid less than

the three male GS-11s, two White and one Asian American, other than Y.

Accordingly, we find that complainant has established that she was

subjected to sex and race discrimination in violation of Title VII when

she was paid at a lower rate than four GS-11 non-Black males within

Pharmacy Services.

Nonselection

Complainant also alleged that she was not selected for the position of

Pharmacist Team Leader, Outpatient Pharmacy, GS-12, due to her race and

sex. The agency acknowledged that complainant established a prima facie

case of discrimination, noting that she is a member of protected groups,

applied and was qualified for the position in question, and was not

selected in favor of a White male.

The agency must therefore articulate a legitimate nondiscriminatory reason

for not selecting complainant. While the agency's burden of production

is not onerous, Commission precedent holds that the agency must set

forth, with sufficient clarity, reasons for its actions such that

complainant has a full and fair opportunity to demonstrate that those

reasons are pretext. See Parker v. United States Postal Service, EEOC

Request No. 05900110 (April 30, 1990); Lorenzo v. Department of Defense,

EEOC Request No. 05950931 (November 6, 1997). Here, ACP testified and

CP confirmed that the selectee (S1) had 27 years of experience as a

pharmacist and that complainant had only 10 years. The agency concluded

in the FAD that S1 was selected due to his greater experience.

The articulation offered by the agency does not give complainant the

opportunity to attempt to satisfy her ultimate burden of proving

the explanation is pretextual. She cannot begin to show that her

qualifications are observably superior, as the record does not indicate

what S1's qualifications were, other than his years of experience.

The Office of Federal Operations has noted in past cases that more years

of experience does not necessarily make an individual more qualified

than others. See McGettigan v. Department of the Treasury, EEOC Appeal

No. 01924372 (February 24, 1993); Ford v. Department of Health and

Human Services, EEOC Appeal No. 01913521 (December 19, 1991). We find,

therefore, that in order to meet its burden, the agency should have come

forward with more specific testimony as to how S1's greater number of

years of experience made him more qualified. At the very least, the

agency should have included a copy of S1's application and/or resume

in the investigative file so that complainant could have attempted to

establish that her experience was greater.

Even assuming that the agency's articulation is sufficient, complainant

has established that it is pretextual. We have already determined that

the agency allowed discriminatory animus to affect its treatment of

complainant when ACP determined her salary offer. This fact does not

lead us to easily accept the agency's claims that the selection process

directed by ACP was free of discrimination. Moreover, background evidence

establishes that complainant was denied a promotion in favor of a White

male under suspicious circumstances in the past. In October 1996, the

position of Pharmacy ADP Coordinator opened and ACP e-mailed the Pharmacy

Service employees noting that anyone interested should apply by October

18, 1996. Complainant timely responded, indicating her interest.

A second e-mail went out on October 21st asking that interested

parties respond with the qualifications and goals by October 23rd.

Complainant did so. A White male who failed to respond by October

23rd, but instead indicated near the end of the day on the 23rd that

he did not have time to respond, was selected for the position (S2).

Copies of e-mail in the record indicate that when ACP did not receive a

response from S2 by the afternoon of October 23rd , he sent out another

email asking if he had missed anyone's responses. When S2 indicated

that he did not have time to respond, he was given an extension.

When an applicant other than complainant mentioned that this seemed

odd, ACP replied (via e-mail) that it was normal. He then selected S2.

Complainant testified that she was more qualified for this ADP position

given her knowledge of computers and her general experience which she

felt was greater than S2s. Although there is little evidence in the

record in regard to this incident, it provides additional evidence that

ACP gave special consideration to White males. This evidence, together

with the agency's limited articulation that provided complainant with

no opportunity to demonstrate her claimed superiority to S1, and the

agency's demonstrated willingness to discriminate against complainant

based on her race and sex, we find that complainant has established that

her non-selection for the position of Pharmacy Team Leader, Outpatient

Pharmacy, was motivated by discriminatory animus.

Remedy

We 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. An individual may recover

under both the EPA and Title VII for the same period of time so long as

the individual does not receive duplicate relief for the same wrong.

Relief is computed to be the highest benefit either statute would

provide. See Telford, supra. An employer who violates the EPA must

remedy that violation not only by awarding the affected employee the

difference between the salary she received and the salary she should

have received, retroactive to the date the violation began, but also by

awarding the employee an additional equal amount as liquidated damages.

See 29 U.S.C. � 216(b); see also Miller v. Department of the Navy,

EEOC Appeal No. 01943457 (December 8, 1995). 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 an 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.� Here, we have found that the salary differential between

complainant and her male comparators was willful and the agency provided

no legitimate grounds that it acted in good faith. An award of liquidated

damages is therefore appropriate and will be discussed in the ORDER below.

See Telford, supra.

CONCLUSION

Accordingly, after a thorough review of the record, including

complainant's arguments on appeal and arguments and evidence not

specifically addressed in this decision, the agency's finding of no

discrimination is REVERSED.

ORDER

The agency is ORDERED to take the following remedial action:

Within sixty (60) calendar days of the date this decision becomes

final, the agency shall offer to promote complainant to the position of

Pharmacist Team Leader, Outpatient Pharmacy, GS-12, or a substantially

similar position. Complainant shall be given a minimum of fifteen (15)

calendar days from receipt of the offer within which to accept or decline

the offer. Failure to accept the offer within the time period set by the

agency will be considered a rejection of the offer, unless complainant

can show that circumstances beyond her control prevented a response

within the time limit. Such promotion shall be retroactive to May 7,

1997, the date on which complainant should have been promoted.

The agency shall determine the appropriate amount of back pay, interest

and other benefits due complainant, pursuant to 29 C.F.R. � 1614.501,

no later than sixty (60) calendar days after the date this decision

becomes final. If complainant declines to accept the promotion with

the agency, the back pay period for the Pharmacist Team Leader position

shall end on the date she declines the offer of promotion.

The agency is also directed to award complainant back pay, with interest,

and benefits for the difference between the GS-11, Step 7 salary she

received and the GS-11, Step 10 salary she should have received between

September 12, 1996 and May 7, 1997, the date on which she should have

received the promotion to the Pharmacist Team Leader position. The agency

is further directed to pay complainant an additional equal amount as

liquidated damages for its violation of the EPA. See 29 U.S.C. � 216(b).

If complainant declines to accept the offer of promotion to the Pharmacist

Team Leader position, the agency shall continue to pay complainant the

GS-11, Step 10 salary. Complainant shall cooperate in the agency's

efforts to compute 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 complainant for the undisputed amount within sixty (60)

calendar days of the date the agency determines the amount it believes

to be due. Complainant may petition for enforcement or clarification

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

must be filed with the Compliance Officer, at the address referenced in

the statement entitled �Implementation of the Commission's Decision.�

The agency shall take corrective, curative and preventative action

to ensure that sex and race discrimination do not recur, including,

but not limited to, providing training to CP and ACP in the law against

employment discrimination. This action shall also include taking steps

to ensure that, in the future, the Professional Services Board provides

an equally thorough review of each applicant's information so that

salary offers are not based on sex, race, or other protected categories.

To further this goal, the agency shall ensure that all employees who

serve on the PSB are trained in the law against employment discrimination

and told that all applications must receive the same level of review.

The agency shall also take steps to ensure that its policy for setting

salaries is in compliance with the EPA, Title VII, and other employment

discrimination laws.

In addition, the agency shall consider complainant's claim for

compensatory damages incurred as a result of the discriminatory

non-selection.<10> Within thirty (30) calendar days of the date

this decision becomes final, the agency shall notify complainant of

her right to present evidence to the agency regarding her claim for

compensatory damages in connection with her non-selection. Complainant

shall provide evidence that the damages claimed are a result of the

agency's discrimination and evidence of the amount of claimed damages.

Within thirty (30) calender days of submission of such evidence, the

agency shall issue a final agency decision on this issue, with appropriate

appeal rights to the Commission. The Commission further orders that the

agency consider complainant's right to any additional attorney's fees

and costs in connection with this appeal and the submission of evidence

in connection with her claim for compensatory damages.

The agency shall award reasonable attorney's fees, as set forth below.

The agency shall post the attached notice, as set forth below.

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 and other benefits due complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Biloxi, Mississippi 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.

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.

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 2, 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, 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., has occurred at the Department of Veterans

Affairs Medical Center in Biloxi, Mississippi (hereinafter �facility�).

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 facility supports and will comply with such federal law and will

not take action against individuals because they have exercised their

rights under law.

The facility was 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 equal work, requiring equal skill, effort and

responsibility. The agency was found to have further discriminated

against this individual when it failed to compensate her at the same

level as similarly situated individuals of different races and when

it failed to promote her. The agency was ordered to: (1) ensure

that this individual receive appropriate back pay, with interest,

and an award of liquidated damages in an amount equal to the back pay

award that stems from the EPA violation; (2) promote complainant to the

position that she was denied, or a substantially similar position; (3)

conduct sensitivity training for the responsible management officials

and to all employees who serve on the Professional Standards Board;

(4) ensure that the Professional Standards Board provides an equally

thorough review of all applications; (5) award compensatory damages,

if applicable; (6) award reasonable attorney's fees, if applicable;

and (7) post this notice.

The facility 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:

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

the 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 agency provided no analysis of complainant's Equal Pay Act claim.

4 There is some confusion in the record as to whether complainant and the

four male GS-11s within Pharmacy Services are called �pharmacists� as

opposed to �staff pharmacists.� The other female GS-11 is referred to

as a �staff� or �fee� pharmacist. Although we are unable to determine

if there is a difference in these positions, there is no dispute that

complainant and the four male GS-11s hold the same position.

5 The FAD refers to Y and Z as the comparators. The record establishes

that there are four male pharmacists in the same position as complainant

within Pharmacy Services. Z is not listed as one of these pharmacists,

but the record does not explain his absence. The agency does not offer

an explanation for the salary differences of the three male GS-11s in

Pharmacy Services, other than Y.

6 We note that we are not implying that a facility must offer an applicant

the same locality pay he or she received in a previous agency position

at a facility which offered greater locality pay. Rather, we find that

in the case at hand, the agency failed to establish that the reason for

the salary difference at issue was not �any other factor other than sex�

when it claimed that the salary difference stemmed from its failure

to consider a female's salary history to the same extent that males'

salary histories were considered.

7 The FAD refers to Y and Z�both white males-- as the comparators.

Z is not shown on the chart displaying the sex, race, grade, salary and

hire date of the pharmacists with Pharmacy Services and his absence is

not explained. The agency does not offer an explanation for the salary

differences of the three non-Black male GS-11s in Pharmacy Services,

other than Y.

8 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.

9 One witness, the President of a AFGE Local 3968 (UP1), testified that

ACP told him that when interviewing male pharmacists, he asked if they

would like more money, but that he did not ask women pharmacists this

question. However, the person named by UP1 as also participating in this

conversation, the President of AFGE Local 1045 (UP2), testified that in

response to a question from UP1 and UP2 as to why male pharmacists were

paid more, ACP replied that males asked for more. UP2's recollection

of the conversation conforms with ACP's testimony that certain male

applicants provided evidence that they could obtain more money elsewhere

and indicated that they would not take pay cuts. In any case, the

evidence establishes that the PBS considered evidence that non-Black

male applicants could make or had made greater salaries at other jobs

in determining what salaries to offer.

10 Although complainant did not request compensatory damages for the

wage discrimination, she did request �$10,000 compensation� in connection

with her non-selection.