Maura S.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

Nov 29, 2018

0120173057 (E.E.O.C. Nov. 29, 2018)

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

Maura S.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.

Appeal No. 0120173057

Hearing No. 555-2012-00225X

Agency No. 54201100244

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 10, 2017
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., the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq., and the Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C.
§ 206(d) et seq.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Administrative
Assistant, GS-6, at the Agency’s Alaska Fisheries Science Center (AFSC) Laboratory facility in
Kodiak, Alaska.

On August 17, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against her: (1) on the basis of sex (female) when the Agency denied her equal pay
for equal work; (2) on the bases of age and/or sex when the Agency failed to provide her proper

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

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compensation; and (3) on the basis of age, sex, and/or in retaliation for prior EEO activity, when
the Agency subjected her to discriminatory harassment for approximately two years.

Her complaint indicates that, although she was hired at a GS-6 level, the position had been at a
GS-7 level from 2001 until she was hired into the position in 2005. When the position was a GS-
7 level position, she asserts it did not include all the duties Complainant performed at a GS-6
level, including property custodian, homeland security PIV official, director of the mail center,
facilities management, librarian duties, trusted agent for compliance with HSPD-12, and
additional administrative functions. She alleged that others who performed property custodian
duties were at a GS-11 level and the person who previously performed Complainant’s duties was
a GS-12.

Complainant also alleged she had been subjected to harassment by several members of the
Agency’s management, including a supervisory management and program analyst; the director
of operations, management and information systems; and a supervisory research fishery
biologist.

The Agency accepted the complaint and conducted an investigation.

During the proceedings, Complainant amended her complaint to include additional allegations.
She alleged that her most recent work plan for fiscal year 2012 did not accurately reflect her
duties and had language inserted without her knowledge; her supervisor refused to promote her
to the same grade level, GS-11, as a male counterpart who performs the same duties; additional
responsibilities were added to her performance plan without compensation; and the full scope of
her duties is not accurately reflected in her performance plan.

Complainant also clarified her allegations relating to being subject to harassment and a hostile
work environment. Since 2005, she said members of the Agency’s supervisors and management
committed various harassing acts towards Complainant, including making ageist comments,
mocking and making fun of her during conference calls, displaying a dismissive and hostile
attitude or tone, spreading gossip about her, denying her access to work documents, speaking to
her loudly, making unwelcome comments and engaging in unwelcome behavior, and, speaking
to and questioning her in a harsh and/or humiliating manner. She also alleged Agency’s
management did not comply with the Agency’s regulations relating to handling allegations of
harassment. Complainant said she was retaliated against for bringing matters to the attention of
the Agency’s Office of Inspector General (OIG), i.e., whistleblowing. Complainant also
amended her complaint to include that her supervisor subjected her to public humiliation and
harassment, abused his power, and made false and malicious statements about her in retaliation.

Letters from the Agency to Complainant’s attorney, dated December 6, 2011 and February 22,
2012, indicate that the Agency dismissed Complainant’s claim relating to whistleblowing,
pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim, as this does not fall within the
purview of the EEO process.

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The evidence developed during the investigation established that, in 2005, Complainant applied
for and was selected for her current position as an administrative support assistant, which was
posted as a GS-6 level position. Complainant’s duties include property custodian duties, which
are 30% of her duties. Although the prior incumbent had served in this position at a GS-7 level,
prior to posting the position at a GS-6 level, the Agency reclassified the position and removed
some of its procurement duties.

The Agency’s policy recommends that property custodians in large bureaus, including NOAA,
should be at a GS-9/11 (or equivalent pay band) level. According to policy, grade determination
should be established based on the responsibility level that an employee holds and the
complexity and value of the personal property in which they are assigned.

In 2007, at Complainant’s request, the Agency’s management analyzed Complainant’s position
and determined that the position was correctly classified at a GS-5/6 level and Complainant’s
duties did not support reclassification at a higher rate.

Complainant asserted her responsibilities are comparable to those of a male co-worker, an IT
specialist (GS-11/12), who also has property custodian duties. She was assigned property
custodian duties following the retirement of a male research fisheries biologist (GS-12), who had
performed these duties as an intermittent part of his job. She also asserts that two of her
counterparts in the Agency’s Seattle facility, both of which are younger employees, were hired at
the GS-7 level, while she was hired at the GS-6 level.

A member of the Agency’s management indicated that he was unaware of any specific grade
level guidelines relating to property custodian duties, but “property custodian” is not a full-time
job and these duties can be applied under a general category, such as “other duties assigned” in
an employee’s performance plan. Management makes individual determinations as to which
employees are assigned property custodian duties to best meet the organization’s responsibilities.

A division director indicated that differences in compensation between administrative support
assistants depend on the specific level of support functions required at that location and the level
of procurement work performed. The administrative staff in Seattle perform a higher level of
procurement duties than Complainant. He also indicated that while the research fisheries
biologist previously performed the property custodian duties, these were relatively minor in
comparison to his primary research fisheries biologist duties.

A supervisory management and program analyst indicated that, while all administrative staff
members in Seattle and Kodak have similar responsibilities, those in Seattle have two additional
tasks – foreign travel and procurement support for purchase orders, which contain more
complicated time-line based, and higher budgetary responsibilities. Therefore, the positions in
Seattle were re-classified to a GS-7 level.

A management program analyst indicated that Complainant’s duties differ from those of her
predecessor in that Complainant is not authorized to write purchase orders for $25,000 or higher.
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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 timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s May 15, 2014,
motion for a decision without a hearing and issued a decision by summary judgment in favor of
the Agency on August 1, 2017. The Agency subsequently issued a final order adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected her to discrimination as
alleged.

The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues there are genuine issues of material fact in dispute and
substantive issues of credibility to be determined. The disputed facts include the issues of
whether her work, as compared to others, was substantially equal and whether Complainant is
responsible for less property items than other property custodians. She argues that the fact that a
male property custodian was a GS-13 after being trained by Complainant and assisted by
Complainant presents an issue. Complainant also asserts the record contains substantial
evidence, including ageist comments and obnoxious and/or discriminatory actions by supervisors
and managers, that constitute a hostile work environment.

The Agency has not submitted a brief or argument in response.

ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. §
1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court’s function is not to weigh the evidence but rather to determine whether there
are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed
at the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable
fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23
(1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if
it has the potential to affect the outcome of the case. If a case can only be resolved by weighing
conflicting evidence, issuing a decision without holding a hearing is not appropriate.

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Upon review of the record we find that the AJ properly found that the instant complaint was
suitable for summary judgment. The record is adequately developed and there are no disputes of
material fact. Complainant was given ample notice of the Agency's motion for a decision without
a hearing, a comprehensive statement of the allegedly undisputed material facts, the opportunity
to respond to such a statement, and the chance to engage in discovery. We find that, even
assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor,
as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was
appropriate.

Complainant has alleged that the Agency treated her disparately. A claim of disparate treatment
is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case of
discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567
(1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason
for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). Once the
agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact
finder by a preponderance of the evidence that the agency acted on the basis of a prohibited
reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

Even if we assume that Complainant established a prima facie case of discrimination based on
sex and/or age, her claim ultimately fails, as we find that the Agency articulated legitimate, non-
discriminatory reasons for its actions. The record establishes that, although the Agency
recommends that property custodians in NOAA should be at a GS-9/11 level, Agency policy is
such that property custodians may serve as such on a part- or full-time basis and that an
employee’s compensation level, i.e. grade or pay band, should reflect his or her overall
responsibility level and the complexity and value of the property under his or her responsibility.
While Complainant’s position had been a GS-7 level position prior to her appointment, the
Agency’s management removed some of the position’s procurement duties and reclassified it as
a GS-6 level position, prior to posting the vacancy. While Complainant’s job duties as an
administrative support assistant include property custodian, this is not her full-time job and it
does not comprise the majority of her workload. The IT specialist who also performs property
custodian duties is compensated at the rate of GS-11/12, as this reflects his primary duties relate
to those of an IT specialist. Similarly, the research fisheries biologist who performed these duties
prior to the appointment of Complainant to her position was compensated at a GS-12 level,
reflecting the fact that his primary responsibilities relate to his position as a research fisheries
biologist, as opposed to his intermittent performance of property custodian duties. And, while the
administrative support assistants in the Seattle facility were hired at a higher, GS-7, level, this
differential reflects the fact that their positions involve additional duties beyond those performed
by Complainant. Thus, we find that Complainant has not established by a preponderance of the
evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a
pretext for unlawful discrimination or motivated by some unlawful discriminatory animus.

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Complainant has also alleged that the Agency violated the EPA. To establish a prima facie case
of a violation of the EPA, a complainant must show that she received less pay than a male
employee for equal work, requiring equal skill, effort and responsibility, under similar working
conditions within the same establishment. Corning Glass Works v. Brennan, 417 U.S. 188, 195
(1974); Sheppard v. Equal Employment Opportunity Commission, EEOC Appeal No. 01A02919
(Sep. 12, 2000); see also 29 C.F.R. § 1620.14(a). The requirement of “equal work” does not
mean that the jobs must be identical, but only that they must be “substantially equal.” Id. (citing
Corning Glass Works, 417 U.S. at 203, n. 24; Homer 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)). Once a
complainant has met her burden of establishing a prima facie case, the agency 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 (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).

Complainant alleges that the Agency violated the EPA by compensating her at a GS-6 level
while compensating her male counterparts at higher levels. As discussed above, Complainant has
indicated other employees (male) who performed property custodian duties were paid at GS-11
or GS-12 levels of compensation. However, we find the record does not establish that
Complainant’s job as an administrative support assistant is substantially equal to that of either
the IT specialist (GS-11/12) who also performs property custodian duties or the research
fisheries biologist (GS-12) who intermittently performed these duties prior to Complainant being
hired and assuming them. Also, while Complainant has identified a male administrative support
assistant in the Seattle office who was hired at a higher level of compensation than Complainant,
his position involved procurement duties that were not part of Complainant’s duties. Thus, we
find that Complainant has failed to meet her burden of establishing she performed “equal work”
as related to her claim.

Complainant has also alleged the Agency subjected her to harassment for approximately two
years. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed
the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is
actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's
employment and create a hostile or abusive working environment.” See also Oncale v.
Sundowner Offshore Services. Inc., 23 U.S. 75 (1998). The Court explained that an “objectively
hostile or abusive work environment [is created when] a reasonable person would find [it] hostile
or abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22.
Thus, a claim of harassment is actionable only if, allegedly, the harassment to which the
complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the
complainant's employment.

We find that Complainant has failed to establish a prima facie case of harassment. Even if her
allegations relating to being called “grandma,” being mocked and made fun of in conference
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calls, employees gossiping, being spoken to loudly or harshly, etc. were true, we find they are
insufficiently severe or pervasive to have altered the conditions of her employment. See Phillips
v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a
supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him
with AWOL, and disagreed with the time the complainant entered into a sign in log, were found
to be insufficient to state a harassment claim). The allegations, assuming they are true, were
isolated incidents that are insufficient to support a prima facie case of harassment. See Rennie v.
Dalton, 3 F.3d 1100 (7th Cir. 1993).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
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Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do
so may result in the dismissal of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests.
Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 29, 2018
Date