U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Devon H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020004286 Agency No. HS-TSA-00724-2014 DECISION On July 22, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 9, 2020, final agency decision (final decision) concerning his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., the Age Discrimination in Employment Act (ADEA) of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and the Equal Pay Act (EPA) of 1963, as amended, 29 U.S.C. § 206(d) et seq. For the following reasons, we VACATE the Agency’s final decision and REMAND the matter for further processing. ISSUE PRESENTED The issue presented on appeal concerns whether Complainant was subjected to discrimination based on race, sex, disability, age, and reprisal when he was allegedly paid a lower salary than his coworkers who were performing the same duties as him. 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. 2020004286 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Federal Air Marshal (FAM), SV-1801-I-00, at the Agency’s Charlotte Field Office in Charlotte, North Carolina. Complainant joined the Agency on June 2, 2002, directly from the U.S. Department of Justice (DOJ). On March 21, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), disability (learning disability), age (over 40), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the ADEA of 1967, Section 501 of the Rehabilitation Act of 1973, and the EPA of 1963, when on January 3, 2014 and continuing, he became aware that he was being paid a lower salary than his coworkers who were performing the same duties as him. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and sought class certification for his complaint. However, on March 30, 2015, the AJ assigned to the matter denied Complainant’s request for class certification and informed Complainant that she would adjudicate the matter as an individual complaint. On May 26, 2015, Complainant appealed the AJ’s March 30, 2015 decision directly to the Commission. On January 26, 2017, the Commission vacated the AJ’s March 30, 2015, decision on the grounds that the AJ had abused her discretion in deciding the issue of class certification without the benefit of seeking clarification on the complaint or allowing for precertification discovery. See Devon H. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120152087 (Jan. 26, 2017), request for recon. denied, EEOC Request No. 0520170354 (Aug. 10, 2017). Therefore, the Commission remanded the matter for processing as a class complaint and the matter was returned to the same AJ who originally denied Complainant’s request for class certification. On March 12, 2018, Complainant filed a request to withdraw his hearing request and class complaint. In accordance with Complainant’s request, the AJ issued an order dismissing the complaint on March 14, 2018 and directed the Agency to issue a final decision on the merits of the individual complaint. Approximately 848 days after the AJ issued the remand order, the Agency issued a final decision on July 9, 2020, pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove his allegations. In finding no discrimination, the Agency initially addressed Complainant’s allegation of discrimination based on disability. Having reviewed the record, the Agency found that Complainant did not meet the legal definition of a “qualified individual with a disability” because Complainant stated that his learning disability “did not affect his ability to perform his daily activities, nor limit his ability to perform his job duties.” The Agency further found no evidence of a disability, as “Complainant did not provide, nor did the record contain, any evidence of Complainant’s learning disability or an accommodation thereof.” 2020004286 3 As such, the Agency concluded that Complainant could not establish a prima facie case of disability discrimination. The Agency then considered Complainant’s claim under the legal standard for disparate treatment. However, the Agency ultimately concluded that “Complainant’s salary and [in- position-increases (IPIs)], vis-à-vis his [three] comparators, were explained by the disparity in pay among [Federal Air Marshal Service (FAMS)] during the consolidation of FAMs within TSA, along with Complainant’s job performance and TSA policy” rather than discrimination. In reaching this conclusion, the Agency emphasized that Complainant did not provide any evidence that management’s denials and explanations were untrue. Lastly, the Agency addressed Complainant’s claim of discrimination under the EPA. While the Agency acknowledged that Complainant had indeed “established that TSA paid different wages to his comparator female FAMs, and that Complainant and the comparator female FAMs performed equal work on jobs the performance of which required equal skill, effort, and responsibility” under similar working conditions, the Agency concluded that the disparity in pay was based on a factor other than sex. In this regard, the Agency emphasized that the disparity was not based on sex but rather “established upon the FAMs consolidation into TSA, and that initial TSA FAM pay was based upon each FAM’s pay at his or her previous agency.” The Agency buttressed this argument by noting that the male FAM whom Complainant named as a comparator “also entered TSA from his previous agency at a higher salary than Complainant, and that disparity in salary continued.” For these reasons, the Agency concluded that Complainant failed to show that the Agency subjected him to discrimination. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant initially requests that the Commission enter default judgment against the Agency as a sanction for its extreme delay in issuing a final decision on the merits of his complaint. In so arguing, Complainant emphasizes that the Agency issued the final decision approximately 26 months after the regulatory requirement even though three Agency attorneys were aware that he had withdrawn his hearing request. He contends that the Agency would not have issued a final decision had his Member of Congress not intervened. Complainant asserts that the facts presented here demonstrate the Agency’s blatant disregard for the Commission’s rules and regulations, thereby warranting the issuance of sanctions. As for the merits of his complaint, Complainant first notes that the Agency conceded that he had successfully established a prima facie case of discrimination under the EPA. He then argues that the Agency’s hiring of two female FAMs (Comparators-1 and 3) at higher starting salaries than him constituted discrimination because the “Agency was hiring female employees at a higher salary than the males.” 2020004286 4 Though Complainant acknowledges that the Agency attributed the pay disparity to the fact that the female FAMs previously earned more than him at their previous agencies, Complainant contends that this assertion cannot be ascertained for one of the female comparators (Comparator-1) because the SF-50 for Comparator-1 does not list her prior agency, if any. He maintains that the Agency’s discriminatory method of establishing initial salaries became amplified over time because “all future pay increases and some Agency awards were based off an employee’s annual salary.” Complainant emphasizes that the Agency’s hiring process at the time of his hire in 2002 has already been found to be discriminatory in Gabriele G. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120141757 (May 13, 2016).2 Finally, Complainant contends that Comparator-2 (male, no disability) was treated more favorably than him because Comparator-2 received a total of seven in-position increases between 2002 to 2014, whereas he only received three increases. Complainant attributes the favorable treatment that Comparator-2 allegedly received to the fact that the managers who were responsible for giving out in-position increases were the same ones whom the Commission previously found had discriminated against him.3 Complainant also reasons that Comparator-2 received more favorable treatment because Comparator-2 did not have a disability. 2 In Gabriele G., supra, the Agency issued a final decision concluding that it discriminated against complainant in violation of Title VII and the EPA when it did not allow complainant to negotiate her initial salary as a Supervisory Transportation Security Officer (STSO) and paid her less than similarly situated male STSOs at the Phoenix Sky Harbor International Airport. In assessing damages, the Agency determined that the EPA violation was not committed in good faith because there was no evidence that agency officials “took affirmative steps to ascertain the requirements of the EPA to prevent violations from occurring” or enacted other measures to prohibit EPA violations, such as monitoring the salaries awarded by its human resources firm. However, the Agency concluded that the EPA violation was not willful. On appeal, the Commission affirmed the Agency’s final decision. 3 In Complainant v. Dep’t of Homeland Sec., EEOC Appeal No. 0720080048 (Dec. 10, 2009), the Commission upheld the AJ’s finding that management at the Charlotte Field Office discriminated against Complainant “on the basis of reprisal when he was denied light/restricted duty.” In Devon H. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120131083 (Dec. 3, 2015), the Commission found that the Agency subjected Complainant to discrimination based on reprisal when the Agency failed to select Complainant for a Supervisory FAM position at the Charlotte Field Office. In Devon H. v. Dep’t of Homeland Sec., EEOC Appeal Nos. 0120131649 and 0120131684 (Dec. 18, 2015), the Commission found that the Agency engaged in reprisal against Complainant when management at the Charlotte Field Office took bets on the outcome of Complainant’s EEO complaint, verbally assaulted Complainant, and subjected him to an internal investigation. 2020004286 5 The Agency opposes Complainant’s appeal and vehemently argues that sanctions are not warranted in this case because the delay was due to inadvertent human error. In so arguing, the Agency explains that when the AJ served the remand order on the Agency’s attorney, the attorney forwarded the order to the Agency’s EEO Office with instructions to provide the order to the DHS EEO Office for the issuance of a final decision. However, the Agency EEO Office employee who received the attorney’s email failed to comply with the attorney’s instruction and simply added the remand order to the case file. The Agency asserts that due to this error, the DHS EEO Office only received the remand order on May 6, 2020. The Agency argues that sanctions are not warranted because it “has [since] undertaken a number of efforts to improve its practices regarding processing of orders” to minimize the risk of error, including additional training for EEO Office personnel. As for the merits of the complaint, the Agency largely reiterates the same contentions underlying its finding of no discrimination and emphasizes that the differential in pay between Complainant and his comparators was based on “differences that existed when they joined the FAM Service and/or differences in their length of prior federal service.” STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Equal Pay Act To establish a prima case of a violation under the EPA, a complainant must show that he or she received less pay than an individual of the opposite sex for equal work, requiring equal skill, effort, and responsibility, under similar working conditions within the same establishment. Sheppard v. Equal Emp’t Opportunity Comm’n, EEOC Appeal No. 01A02919 (Sept. 12, 2000), req. for recons. den., EEOC Request No. 05A10076 (Aug. 12, 2003). Once a complainant has met this burden, the employer may avoid liability only by showing that the difference in pay is justified under one of the four affirmative defenses set forth in EPA: (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 as an incentive or piecework system; or, (4) a differential based on any factor other than sex. Id. 2020004286 6 The EPA permits a compensation differential based on a factor other than sex. In order to establish this defense, an Agency must establish that a gender-neutral factor, applied consistently, in fact explains the compensation disparity. EEOC Compliance Manual, Chapter 10: Compensation Discrimination, No. 915.003, (EEOC Compliance Manual) at 10-IV (Dec. 5, 2000). The Agency must also show that the factor is related to job requirements or otherwise is beneficial to the Agency’s business and used reasonably in light of the Agency’s stated business purpose as well as its other practices. Id.; Complainant v. Dep’t of Homeland Sec., EEOC Appeal No. 0720040139 (May 7, 2007), req. for recons. den., 0520070616 (July 25, 2007). “Employers can offer higher compensation to applicants and employees who have greater education, experience, training, or ability where the qualification is related to job performance or otherwise benefits the employer’s business.” EEOC Compliance Manual at 10-IV. The Commission has noted that such a qualification would not justify higher compensation if the employer was not aware of it when it set the compensation, or if the employer does not consistently rely on such a qualification. Id. Furthermore, the difference in education, experience, training, or ability must correspond to the compensation disparity. Id. The Commission has recognized that continued reliance on pre-hiring qualifications is less reasonable the longer the lower paid employee has performed at a level substantially equal to, or greater than, his or her counterpart. Id. As the Agency in this case has conceded that Complainant established a prima facie case of discrimination under the EPA, we need only determine whether the Agency has offered sufficient evidence to justify the differential in pay under one of the four affirmative defenses set forth in the EPA. Here, we note, in relevant part, that in its final decision, the Agency asserted that the disparity in starting pay did not violate the EPA because “management established by a preponderance of the evidence that the disparity in pay was attributed to a factor other than sex; that is, pay for each FAM was established upon the FAMs consolidation into TSA, and that initial TSA FAM pay was based upon each FAM’s pay at his or her previous agency.” On appeal, Complainant disputes that assertion and maintains that there is insufficient evidence to ascertain whether Comparator-1 had prior federal service. He contends that the Agency’s discriminatory method of establishing initial salaries became amplified over time because “all future pay increases and some Agency awards were based off an employee’s annual salary.” Having reviewed the record, we agree with Complainant that further development of the record is warranted, as the record is unclear as to whether the differential in starting pay was “based upon each FAM’s pay at his or her previous agency.” In this regard, our review of Complainant’s SF-50 shows that he joined the Agency on June 2, 2002 from the Department of Justice. ROI at 282. His starting salary was $40,740. Id. Comparator-1’s SF-50 reveals that she onboarded with the Agency at the same duty station and in the same month as Complainant with a starting salary of $56,493. ROI at 322. Though the Agency has repeatedly asserted that Comparator-1 received a higher starting salary than Complainant because she earned more than Complainant at her prior agency, we find that Comparator-1’s personnel file lacks any indicia of an inter-agency transfer such as a “Termination - APPT In” SF-50 immediately prior to her appointment with the Agency in 2002. 2020004286 7 We also note that Comparator-1’s “Excepted Appointment” SF-50 reflects a “service computation date” of June 16, 2002, that matches her onboard date with the Agency and contains no mention of her previous federal agency (i.e., Box 14 of SF-50). Id. Given these factors, we find it unlikely that Comparator-1 had any prior federal service before joining the Agency. Though the Agency clarifies on appeal that the disparity in pay was based on “differences that existed when [Complainant] and his comparators” joined the FAM Service,” it is unclear to us what those differences were. We note that “relevant considerations in evaluating reasonableness [of considering prior salary in setting pay] include (1) whether the employer also uses other available predictors of the new employee’s performance, (2) whether the employer attributes less significance to prior salary once the employee has proven himself or herself on the job; and (3) whether the employer relies more heavily on salary when the prior job resembles the new job.” Smith v. U.S. Postal Serv., EEOC Appeal No. 07A50037 (Aug. 16, 2005) citing EEOC Compliance Manual at 10-IV, n. 78 (citations omitted). As the record contains no affidavits from Agency officials involved in setting the initial salaries or evidence regarding Comparator-1’s professional experiences, qualifications, and salary history prior to joining the Agency, we are unable to determine what differences existed between Complainant and Comparator-1 to justify Comparator-1’s nearly $16,000 higher starting salary. Consequently, we shall remand the matter for a supplemental investigation. As we are remanding the complaint for further investigation, we decline to adjudicate Complainant’s remaining allegations of disparate treatment, as such allegations are closely intertwined with his EPA claim. We are also currently disinclined to sanction the Agency for its oversight in issuing the final decision; however, we nevertheless remind the Agency of its obligation to comply with the Commission’s time limits for processing complaints. Complainant may, if he so chooses, reassert his request for sanctions if the Agency again fails to comply with the Commission’s orders. In summary, we shall remand the matter for further investigation into Comparator-1’s professional experiences, qualifications, and salary history, as well as the Agency’s reasons for paying Comparator-1 a higher initial salary. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency’s final order and REMAND the matter for further processing as directed in the ORDER below. 2020004286 8 ORDER The Agency shall take the following actions: 1. Within sixty (60) calendar days of the date this decision is issued, the Agency shall complete a supplemental investigation into Complainant’s EPA claim. As part of the supplemental investigation, the Agency shall obtain the following: a. Any relevant evidence concerning Comparator-1’s professional experiences, qualifications, and salary history prior to joining the Agency. In particular, the supplemental investigation should include the job application that she used to apply for her initial position with the Agency in 2002, as well as her resume and supporting materials, if any; and b. Affidavits from all management and/or human resources official(s) involved in setting the initial salaries of Complainant and Comparator-1, addressing the process for setting salaries for candidates in 2002 and the reasons why Comparator-1 was awarded a significantly higher salary than other candidates such as Complainant. 2. Following the completion of the supplemental investigation, the Agency shall provide Complainant with a copy of the supplemental investigation and afford him no less than thirty (30) calendar days to comment and/or respond to the supplemental investigation, if he so chooses. 3. Within one hundred twenty (120) calendar days of the date this decision is issued, the Agency shall issue a new final agency decision on the merits of the entire complaint. 4. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 2020004286 9 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 2020004286 10 In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (R0610) 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 (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. 2020004286 11 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 October 6, 2021 Date
