[Redacted], Mathew R., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 13, 2022

Appeal No. 2022000673 (E.E.O.C. Oct. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mathew R.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000673 Agency No. 200H-0650-2020106624 DECISION 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 October 21, 2021, final decision concerning an equal employment opportunity (EEO) complaint claiming 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., and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. BACKGROUND During the period at issue, Complainant worked as a Full-time Primary Care Physician (PCP) at the Agency’s VA Providence Medical Center in Providence, Rhode Island. On October 22, 2020, Complainant filed a formal EEO complaint claiming that the Agency violated the Equal Pay Act and discriminated against him based on sex (male) and in reprisal for prior protected EEO activity2 when: 1. on September 24, 2020, Complainant learned that he was paid less than a female co-worker (CW1) in the same position; and 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. 2 Complainant testified that he filed prior EEO complaints in 2019 and 2020. 2022000673 2 2. on September 24, 2020, Complainant learned that he did not receive a market pay increase. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a final decision. On October 21, 2021, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination or violation of the Equal Pay Act. The instant appeal followed. ANALYSIS AND FINDINGS Equal Pay Act The U.S. Supreme Court articulated the requirements for establishing a prima facie case of discrimination under the EPA in Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). To establish a violation of the EPA, 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. Id. at 195; Sheppard v. Equal Employment Opportunity Commission, EEOC Appeal No. 01A02919 (Sept. 12, 2000); see also 29 C.F.R. § 1620.14(a). Once Complainant has met this 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 measure earnings by quantity or quality of productions of work (also referred to an incentive or piecework system); or 4) a differential based on any other factor other than sex, 299 U.S.C. § 206(d)(1); Corning Glass Works, 417 U.S. at 196-97; Kouba v. Allstate Insur. Co., 691 F.2d 873 (9th Cir. 1982). Complainant testified that he is a full-time PCP, VM0-602, step 3, employee. However, CW1 is a part-time physician who performs the same job duties and responsibilities as a full-time physician but only works 40-60 hours every two weeks and is paid more than Complainant. Specifically, Complainant stated that CW1’s part-time salary was $195,188. while his full-time salary was $192,760. Complainant further asserted that he believed that management paid female physicians more while only requiring that the female physicians work fewer hours in comparison to male employees such as himself who work full-time and are paid less. However, contrary to Complainant’s assertions, the record indicates that Complainant was paid more than CW1. The record reflects that Complainant had an overall salary of $189.942 (a base pay of $108,338 and market pay of $81,605) while CW1 had an overall salary of $185,876 (a base pay of 104,843 and market pay of $81,033). 2022000673 3 The record further indicates that three other female PCPs (CW2, CW3, and CW4) were also paid less than Complainant with overall salaries of $180,282, $187,666, and $181,074. Consequently, the record reflects that Complainant was actually paid more than CW1, CW2, CW3, and CW4. Therefore, Complainant has not established a prima facie case for an EPA claim. The Primary Care Associate Chief (PCAC) also testified that CW1 had more primary care experience than Complainant. Additionally, CW1 maintained board certification in internal and obesity medicine; maintained a panel that exceeded patient-centered management module guidelines for primary care, and she precepted medical residents. In contrast, Complainant did not have any board certifications or any of the professional accomplishments as CW1. Therefore, given these facts, the record supports that any difference in pay between Complainant and CW1 was based on superior experience rather than sex. Consequently, Complainant has failed to demonstrate a violation of the Equal Pay Act. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 Construction 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 Texas Department of Community 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 Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Our review of the record supports that the Agency articulated legitimate, non-discriminatory reasons for not giving Complainant a market pay increase. 2022000673 4 Complainant testified that only female physicians received market pay increases and at least two of these physicians were part-time physicians which Complainant asserts were not eligible for market pay increases. Complainant further testified that he did not receive a market pay increase after he had filed prior EEO complaints. The PCAC testified that all PCPs were due a market increase. However, due to budget restraints, only three PCPs (two female and one male) were recommended for market increases, and the PCAC noted that these individuals made less money than Complainant. The record indicates that twenty-four PCPs (twelve female and twelve males including Complainant) did not receive market increases. The PCAC explained that this decision was collectively made by a panel comprised of herself, Complainant’s director supervisor (male), the Primary Care Firm II Chief (female), and the Supervisory Health Systems Specialist (female). Complainant’s supervisor explained that the panel made its recommendations for market increases for the three PCPs (CW1 was one of the three individuals) “based on commensurate experience, market pay assessments, and institutional resources available for salary adjustments for Primary Care staff.” All responsible panel members denied that Complainant’s sex or prior EEO activity were factors in the decision not to approve him for a market increase. Additionally, contrary to Complainant’s assertion, the Agency’s VA handbook clarifies that all physicians are eligible for market pay, and the handbook does make a distinction between full- time or part-time physicians. After careful consideration of the record, we conclude that neither during the investigation nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s sex or reprisal for prior protected EEO activity. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. 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. 2022000673 5 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. 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 (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. 2022000673 6 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 October 13, 2022 Date