0520160102
05-03-2016
Melani F.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Melani F.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520160102
Appeal No. 0120133222
Hearing No. 430-2012-00051X
Agency No. 2004-0659-201110-1990
DECISION ON REQUEST FOR RECONSIDERATION
On December 1, 2015, Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120133222 (November 12, 2015). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
At the time of events giving rise to her complaint, Complainant worked as a Supervisory Recreational Therapist, GS-11, at the Agency's W.G. Hefner Veterans Affairs Medical Center in Salisbury, North Carolina (Salisbury VAMC).
In our previous decision, we affirmed the Agency's order which fully implemented an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ's) decision by summary judgment that Complainant was not discriminated against by the Agency based on her race (African American) and sex (female) in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. when:
1. On January 20, 2007, management refused to reclassify her position of Supervisory Recreation Therapist from a GS-11 to the GS-12 grade level;
on the above bases and reprisal for equal employment opportunity (EEO) activity in violation of Title VII when:
2. On February 22, 2011, she was informed that management refused to reclassify her position of Supervisory Recreation Therapist a from GS-11 level to a GS-12 level; and
3. When on July 21, 2011, pursuant to a desk audit, a decision was made by the classification unit that the Supervisory Recreation position description was correctly classified at the GS-11 grade level.
In her request for reconsideration, Complainant disagrees with the previous decision, making the same arguments she raised on appeal. We agree, for the reasons recounted in the AJ's decision and the previous decision that summary judgment was appropriate and Complainant did not prove a violation of Title VII.
Specifically, Complainant did not prove intentional discrimination. The repeated decisions classifying the position of Supervisory Recreation Therapist as a GS-11 were made by the Agency's VISN 6 Consolidated Classification Unit which classifies positions for eight Agency medical centers. For at least part of the relevant time, the Consolidated Classification Unit was physically located in Durham, North Carolina. During the relevant period, the Salisbury VAMC did not classify positions.
As previously found, at the request of the Chief of the Salisbury VAMC Rehabilitation Medicine Service (S1), Complainant's future first line supervisor, the Consolidated Classification Unit classified the Supervisory Recreational Therapist position in May 2007, in anticipation of recruiting therefore since the incumbent, a GS-12, retired or was retiring. Complainant was later selected in August 2007. As found by the AJ, there was no evidence that the Consolidated Classification Unit Human Resources Specialist (Classifier 1) who did this classification had any idea who would apply for the job, and the record was devoid of evidence that Classifier 1 was motivated by discriminatory animus. We add there is no evidence that S1 was motivated by animus in asking for the classification. In fact, S1 submitted a statement on Complainant's behalf writing that she believed the position warranted a GS-12 and wrote letters questioning the GS-11 grade when it had been a GS-12 (for well over 20 years), and that she supported Complainant in her quest to remedy this grade inequity.
After assuming the position of Supervisory Recreation Therapist, GS-11, Complainant made several efforts get it upgraded to GS-12, often with local Salisbury VAMC management support, resulting in repeated classification reviews, to no avail. The Consolidated Classification Unit classified the position again both in March 2009 and April 2011 as GS-11, culminating in a desk audit by the same unit where a new position description was created with significant input by Complainant again resulting in a classification of GS-11 in July 2011. Classifier 1 affirmed that previously, the Recreation Therapy was its own service line, but then became part of the Rehabilitation Medicine Service, resulting in it reporting to a lower level of management and her classifying it as a GS-11 rather than GS-12. The Chief of the Consolidated Classification Unit affirmed that she classified the position as a GS-11 in March 2009 for the same reason. This organizational structure did not change after 2007.
On request Complainant, as she did before, disputes that the job reporting structure ever changed. She points to S1's statement that during her tenure from May 2003 to March 2008 (now retired), Recreational Therapy was a branch of the Rehabilitation Medicine Service. Complainant also points to undated organizational charts showing the same. But Complainant's predecessor, who submitted a statement on Complainant's behalf, stated that in his 23 years in the position Recreational Therapy has been organized in various ways. Report of Investigation (ROI), at 332a. This lends support to the referenced statements that the reporting structure changed - at some point prior to 2007.
Regardless, as found by the AJ, prior to 2007, the Salisbury VAMC Human Resources was responsible for classifying positions for the Salisbury VAMC. Complainant has not shown that the Consolidated Classification Units' consistent explanation, made by multiple staff members for classifying the position from 2007 onward as a GS-11 was pretext to mask intentional discrimination - it classified the job in accordance with classification standards.
Under the Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. � 206(d) et seq., a finding of discrimination for unequal wages can be found without proof of intentional discrimination. Here, there were several statements by former Salisbury VAMC management officials that Complainant's work was the same, substantially equivalent, or even contained additional responsibilities to the work of her male predecessor, who was at the GS-12 level. Further, Complainant submitted evidence that the Supervisory Recreational Therapist position is at the GS-12 level at other Agency facilities. ROI, at 384. The above constitutes an EPA claim, and this was not investigated. In the order below, we will address this matter.
Complainant's request for reconsideration is denied. The Agency's final order finding no violation of Title VII is AFFIRMED. On our own motion, we reopen our previous decision. On remand, the Agency shall comply with the Order below. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The remanded claim is whether Complainant was discriminated against on the basis of sex (female) in violation of the EPA when she was paid unequal wages upon assuming the position of Supervisory Recreational Therapist, GS-11 in 2007 and continuing thereafter. The Agency shall acknowledge to Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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) (1994 & Supp. IV 1999). 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408)
You are authorized under section 16(b) of the Fair Labor Standards Act (29 U.S.C. � 216(b)) to file a civil action in a court of competent jurisdiction within two years or, if the violation is willful, three years of the date of the alleged violation of the Equal Pay Act regardless of whether you have pursued any administrative complaint processing. The filing of the 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
May 3, 2016
__________________
Date
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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