Shara D.,1 Complainant,v.John Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Feb 3, 2016

0120141398 (E.E.O.C. Feb. 3, 2016)

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

Shara D.,1
Complainant,

v.

John Kerry,
Secretary,
Department of State,
Agency.

Appeal No. 0120141398

Agency No. DOS-F-091-13

DECISION

On February 26, 2014, Complainant filed an appeal from the Agency’s January 22, 2014, final
decision 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. and the Equal Pay Act (EPA) of 1963, as amended, 29 U.S.C. §
206(d) et seq. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Information
Technology Specialist, GS-2210-13, at the Bureau of Overseas Buildings Operations (OBO),
Resource Management (RM), Office of the Executive Director (EX), Information Resource
Management (IRM), located in Arlington, Virginia. Beginning on May 21, 2012,
Complainant’s first line supervisor (S1) was the Supervisory Information Technology
Specialist, IRM Division Chief/Director. Beginning on May 21, 2012, Complainant’s second
line supervisor (S2) was the Executive Director, OBO/RM/EX.

On April 20, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), and religion
(Christian)2

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.
when:
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1. She received less pay than individuals of the opposite sex for equal work;
2. On March 7, 2013, she received an inaccurate 2012 performance appraisal;
3. On December 13, 2012, Department officials made a recommendation that her
position be reclassified to a GS-7 position as a result of a desk audit; and
4. She was subjected to a hostile work environment characterized by, but not
limited to, disparaging comments, ostracizing behavior, and lack of support
from management.

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). In accordance with Complainant’s
request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision
concluded that Complainant failed to prove that the Agency subjected her to discrimination as
alleged.

On appeal, Complainant notes that the Supervisory Human Resources Specialist stated
Complainant is the only employee in the division that provides contract administration support.
In response to the statement by the Supervisory Human Resources Specialist, Complainant
states that a GS-13 Equivalent Personal Services Contractor, Program Analyst also provides
similar support. Complainant alleges that she is not supported in accomplishing her COR
(Contracting Officer Representative) responsibilities or performing work in her assigned
position description, and states the duties she is assigned are not in her performance plan.

With regard to her 2012 performance appraisal, Complainant states she was not supported in
accomplishing her 2012 work requirements. Complainant states her previous supervisor’s
departure rating was lower than the rating she received during her performance evaluation
discussion.

With regard to the desk audit, Complainant states that the desk audit recommendation was a
fabricated action. Complainant declares she was embarrassed, humiliated, and degraded by the
desk audit that she stated included more than 70 errors.

With regard to her claim that she was subjected to a hostile work environment, Complainant
claims she was relegated to perform unclassified work and burdened with inequitable
administrative tasks that are predominately performed by women. Complainant alleges she
was directed to submit an accretion of duties memorandum to Human Resources; however, she
states the memorandum and other significant work requirements were not included in the desk
audit.

ANALYSIS AND FINDINGS

2 During the investigation Complainant clarified that she is a Jehovah’s Witness.
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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”).

Regarding claim (1), the United States 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 (1974). To establish a prima facie case of a violation under the EPA,
a complainant must show that she or he 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. EEOC, EEOC Appeal No. 01A02919
(September 12, 2000), req. for reconsideration denied, EEOC Request No. 05A10076 (August
12, 2003).

Once a complainant has met this burden, an employer may avoid liability only by showing that
the difference in pay is justified under one of the four affirmative defenses set forth in the
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. We note that the EPA is
limited to certain sex-based differentials in wages. The EPA does not prohibit discrimination
in other aspects of employment, even those that have compensation-related consequences, such
as hiring, firing, promotion, transfer, or other issues. Wiley v. Department of the Treasury,
EEOC Appeal No. 01972118 (June 27, 2001) (citing Schnellbaecher v. Basking Clothing Co.,
887 F.2d 124, 130 (7th Cir. 1989) (a claim of discriminatory promotions is beyond the scope
of the EPA but actionable under Title VII)).

The requirement of “equal work” does not mean that the jobs must be identical, but only that
they must be “substantially equal.” Laffey v. Northwest Airlines, 567 F.2d 429, 449 (D.C.
Cir. 1976). The terms skill, effort, and responsibility, “constitute separate tests, each of which
must be met in order for the equal pay standard to apply.” 29 C.F.R. § 1620.14(a). The
factors of skill, effort, and responsibility used to measure the equality of jobs are not precisely
definable. Id. Skill includes such things as “experience, training, education, and ability.” 29
C.F.R. § 1620.15(a). Effort addresses the amount of “physical or mental exertion needed for
the performance of a job.” 29 C.F.R. § 1620.16(a). Responsibility concerns “the degree of
accountability required in the performance of the job, with emphasis on the importance of the
job obligation.” 29 C.F.R. § 1620.17(a).

With regard to her EPA claim, Complainant made no arguments on appeal. During the
investigation, however, Complainant identified three male comparatives who she states
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performed COR duties and reported to S1 but were GS-14s: Comparative 1, Comparative 2,
and Comparative 3. Complainant stated that like her, all three male employees performed
COR duties such as ensuring that: all contract deliverables are developed according to business
requirements; projects meet established deadlines; and all budgetary constraints are met for
cost, performance, and schedule. Complainant acknowledged, however, that these
comparatives performed duties she did not perform such as, work activities in application
development, network operations management, and information systems security management.
Complainant also stated that she performed various contract management and program
management activities not performed by the GS-14 employees.

In his affidavit, S1 stated that Complainant’s duties differed significantly from other employees
and that her focus on contract administration, COR duties, and procurement support was
unique in the Division. S1 explained that Complainant’s job responsibilities were non-
supervisory, and she did not have technical oversight of staff or staff work products. S1 noted
that the GS-14 employees under his supervision, unlike Complainant, had supervisory and
technical duties with some elements of contract administration. S1 explained that the
supervisory duties of the GS-14 employees included oversight and management of technical
GS, PSC (personal series contractors), and contractor resources in the area of network
operations, application development, and information assurance.

S1 explained that the Division included other branches where there were non-supervisory GS-
14 positions. However, he stated these positions were Project Managers who combined
advance technical and project management responsibilities. S1 stated Complainant was not
performing the same or similar duties as those Project Managers.

Upon review of the record, we find that Complainant’s identified comparatives did not perform
equal work requiring equal skill, effort, and responsibility compared to Complainant. Unlike
Complainant they had supervisory or team lead duties. We note that in her rebuttal affidavit,
Complainant states that S1 titled her “contract management and administration duties as a
Champion, a Champion has team lead responsibilities.” However, Complainant failed to
establish that she performed equal work as the comparatives since their primary job
responsibilities were not limited to contract management, COR duties, and procurement, as
were Complainant’s primary duties.

With regard to claim (2), Complainant claimed that her 2012 performance appraisal was
inaccurate. Complainant stated she was not supported in accomplishing her work
commitments. She claimed she was not allowed a reasonable time to perform before the
progress review. Complainant stated her supervisor rated accomplishments as complete that
were not met, and then repeated the same work commitments for the 2013 work plan.
Complainant also stated that S1 agreed to supplement his narrative with comments from her
own input, but her input was not included.

S1 stated that Complainant did have sufficient time to accomplish her work commitments. S1
noted that Complainant’s work commitments were effective from May 21, 2012, through
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December 31, 2012, because S1 did not assume supervisory responsibility for Complainant
until May. S1 noted that Complainant did inform him that her workload was excessive. S1
stated based on that concern and in recognition that the credit card portion of her work
portfolio was significant, he worked to move the credit card duties to another Division. S1
noted the number of contracts Complainant oversaw was also reduced as a result of the same
concern.

S1 also disagreed with Complainant’s claim that her input on her appraisal was ignored. S1
stated that he asked Complainant on December 10, 2012, to provide a listing of her 2012
accomplishments and 2013 goals. S1 stated Complainant did not comply. S1 stated that
Complainant stated that the “equitable pay issue” had to be resolved first. S1 noted that he
sent Complainant an electronic mail message on January 3, 2013, with a draft of his write-up
and a request for feedback. S1 states he met with Complainant on January 7, 2013, about his
write-up, took her input, and provided a revised draft to her via electronic mail. S1 stated that
he took into consideration Complainant’s input when he entered his narrative.

S1 addressed Complainant’s claim that in her 2012 performance appraisal some work
commitments were classified as “complete” but were carried over to 2013 as commitments.
S1 noted that 2012 accomplishments included the development of policy in some areas on
contract administration and filing. S1 stated the implementation of the policy was going to
require outreach to other CORs and GTMs (Government Technical Monitors). S1 explained
that he discussed with Complainant not viewing the work as complete until they had
accomplished both training and adoption of the policy. S1 stated the goal was to achieve
implementation which meant carrying the goals into the 2013 calendar year.

S1 stated that he rated Complainant as “Exceeds Expectations” in six of nine work
commitments (the highest possible rating) and “Fully Satisfactory” in the other three areas.
Specifically, Complainant was rated as “Fully Successful” in Critical Performance Element 1-
Work Commitment 1c related to serving as “Division Champion” in matters of contract
administration. S1 stated that Complainant was rated as “Fully Successful” for Critical
Performance Element 1 because she accomplished two of the objectives for that element but
did not exceed two objectives. Complainant was also rated as “Fully Successful” in Critical
Performance Element 4: Participation and Teamwork and Critical Performance Element 5:
Interpersonal Skills and Communication. S1 noted that Complainant met both of these
competencies but did not exceed either competency. S1 stated as a result, Complainant’s
overall rating was “Exceeds Expectations.” S1 stated the “Fully Satisfactory” ratings were
due to her not meeting the standard for a higher rating. S1 stated that he did take into
consideration the prior supervisor’s evaluation and noted in that evaluation there were some
concerns with Complainant’s attitude which carried over into his leadership observations of her
performance.

Complainant requested higher level review of her 2012 evaluation. The higher level review
was completed by S2 who commented that he agreed with the rating by S1.

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Complainant stated her race must have been a factor in her evaluation because she was not
supported in accomplishing her work assignments because she is an African-American woman
who proactively addressed disparity in treatment. Complainant stated that her sex was a factor
in the evaluation because she is not aware of any men in the division who do not receive the
support required to accomplish their work. Complainant stated religion was a factor in the
evaluation because her supervisor stated that she was a “moral individual.”

Upon review, we find the Agency articulated legitimate, nondiscriminatory reasons for its
actions regarding Complainant’s evaluation. Complainant failed to show that the Agency’s
actions were a pretext for discrimination.

Although the Agency dismissed claim (3) on procedural grounds, we note the Agency also
addressed this claim on the merits. Complainant claimed that the results of the desk audit did
not reflect “the evaluation of my work assignments” and claimed the Agency did not review all
her assigned work. Complainant contended that S1 withheld information from the classifier
and fabricated information that flawed the audit results. Complainant stated that she approved
invoices, while the desk audit reported she simply reviewed invoices prior to management
approval. Complainant also stated that S1 advised another manager in the division
(Comparative 1) not to work with HR to correctly classify the work Complainant does.

Complainant stated that she believed race was a factor in the desk audit results because all
“civil service direct hire African American women in the division work for [her] supervisor
[S1].” Complainant stated that two of them have comparable position descriptions to the
position descriptions assigned to the Application Support Management Branch (ASMB).
Complainant noted there are no civil service direct African-American women assigned to the
Application Support Management Branch.

Complainant claimed her sex was a factor in the desk audit because the results did not include
COR’s delegated responsibilities required of all CORs or the requirement for her to provide
program management subject matter expertise. Complainant stated the division has four CORs
and the other three are men who are GS-14s. Complainant noted the desk audit classified her
work as a GS-7.

Complainant stated her religion was a factor in the desk audit because S1 made a comment to
her several times during a conversation that she was “a moral individual.” Complainant noted
that S1 made a comment during a front office staff meeting during her attendance that there
were no CORs assigned to the front office and that no one assigned to the front office manages
contracts. Complainant noted that she approved invoices and was responsible for ensuring
contract compliance.

The Agency noted that Complainant presented no evidence substantiating her allegation that S1
withheld or fabricated information. The Agency acknowledged that there appeared to be a
factual error in the desk audit. Specifically, the Agency noted that the desk audit indicated that
Complainant received, rather than approved, invoices, but the Agency noted that
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Complainant’s performance plan shows that Complainant had approval authority for at least
some invoices. The Agency cited a June 27, 2012 electronic mail message from S1 to the
Human Resources Specialist (Classification) regarding Complainant’s job duties. In the
electronic mail message, S1 stated that Complainant reviewed and approved contractors’
vouchers or invoices. Thus, the Agency states there is no reason to fault S1 for the error in
the desk audit. The Agency argues that the record does not establish that the error was
material or that the error was the result of unlawful discrimination.

Moreover, with regard to Complainant’s allegation that S1 sought to exclude Comparative 3
from the classification process, we find this allegation is unsubstantiated. Moreover, we note
that the allegation is contradicted by a June 27, 2012 electronic mail message in which S1
specifically referred the HR Specialist (Classification) to Comparative 3 as a primary contact to
clarify the role between Complainant and the GTMs.

Upon review, we find the Agency articulated legitimate, nondiscriminatory reasons for its
actions surrounding Complainant’s desk audit. We find Complainant failed to prove by a
preponderance of evidence that the Agency’s actions were a pretext for discrimination.

With regard to claim (4), Complainant claimed she was subjected to a hostile work
environment. Specifically, Complainant stated that on May 19, 2012, she was reassigned to
work for S1. Complainant stated when she asked him when her workload would be staffed
appropriately, he responded “You’re just counting more beans.” Complainant stated that
during a December 4, 2012 front office staff meeting, S1 stated that there were no CORs
assigned to the front office and no one assigned to the front office managed contracts.
Complainant stated that after she and another individual corrected S1, he apologized.
Complainant also alleged that during a December 11, 2012 conversation with S1 in his office
regarding the status of her desk audit, he responded that he did not want others in her business
and told her to close the door. Complainant stated she responded that it was the government’s
problem. Complainant stated that during a December 12, 2012 conversation with S1 in his
office about addressing work issues, he stated several times, “You are a moral individual.”
Further, Complainant stated that during a December 17, 2012 discussion with S1 about his
receipt of the desk audit results, he responded he did not receive a copy. Complainant also
noted that at a July 23, 2013 front office staff meeting, S1 made the comment to Complainant,
“You’re smiling today.” Finally, Complainant stated that she is responsible for managing
contract compliance in an environment where she is physically separated from the contractors.
Complainant noted she is assigned to work at State Annex 6 and the contractors work at State
Annex 44.

With regard to the meeting on May 12, 2012, S1 stated he had no record of meeting
Complainant on May 12, 2012. S1 stated that that date is a Saturday and he was not working.
S1 also stated he had no recollection of making a comment about “counting beans” to
Complainant. S1 stated he did have numerous conversations with Complainant about staffing
and workload.

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With regard to the December 4, 2012 statement, S1 confirmed that there was a morning staff
meeting and they did discuss the EX consolidation. S1 stated the comment may have related to
the Bureau’s front office which does not currently manage contracts. S1 stated he did not
recall stating that the Division’s front office or Complainant did not serve as CORs.

With regard to the December 11, 2012 incident, S1 stated that he wanted the door closed
during the meeting because they were having a private conversation and he wanted to prevent
any interruptions. S1 explained as a Director it was his practice to close his office door when
having private conversations.

With regard to the claim that S1 called Complainant a “moral” individual, S1 stated he has
often complemented Complainant as being principled and “moral” in her office conduct. S1
explained he first gave voice to this idea after she came to him with a case of another
individual who was not receiving what she thought was fair treatment from OBO and
Complainant asked if S1 could help.

With regard to the December 17, 2012 discussion with S1 about his receipt of the desk audit
results, S1 stated that he did not receive the results until January 9, 2013, which explains why
he told Complainant he had not received the desk audit as of December 17, 2012.

With regard to the July 23, 2013 comment, S1 stated that when he walked into the meeting,
Complainant had a “joyful look on her face and as a pleasantry I remarked on it.”

With regard to Complainant’s claim that she is physically separated from contractors, S1 stated
that OBO’s primary work site has had an ongoing shortage of space which has resulted in two
significant space compromises that impact all staff. First, the Division space layout was
reconfigured to provide smaller cubicles. Second, many of the ASMB Branch employees and
contractors had to be located in SA-44 annex, resulting in many staff and contractors shuttling
back and forth by metro or buses between buildings on a daily basis.

Upon review, we find Complainant failed to establish by a preponderance of evidence that she
was subjected to a hostile work environment. Specifically, we find that Complainant failed to
establish that any of the Agency’s actions were motivated by discrimination.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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:
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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), 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, P.O. Box 77960, Washington, DC 20013. 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 (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
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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

February 3, 2016
Date