Soila R.,1 Complainant,v.Martin J. Gruenberg, Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity Commission

Sep 12, 2018

0120162324 (E.E.O.C. Sep. 12, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Soila R.,1 Complainant, v. Martin J. Gruenberg, Chairman, Federal Deposit Insurance Corporation, Agency. Appeal No. 0120162324 Hearing No. 570-2013-00673X Agency No. FDICEO-12-044 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 June 7, 2016 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. 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 order. BACKGROUND Since 2000, Complainant worked as an Accountant, CG-510-12, in the Agency’s Disbursements Operations Section (DOS), Division of Finance. DOS Manager A served as Complainant’s first level supervisor since February 2008. Prior to that time, Manager B served as Complainant’s first level supervisor from 2002 through 2007. Manager B retired in 2009. Retired Manager C was Complainant’s second level supervisor during much of the relevant time. After Manager C’s retirement, Manager D became Complainant’s second level supervisor. 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. 0120162324 2 Fellow CG-12 Accountant, Comparative 1 (Caucasian, female) was selected for a Senior Accountant position in 2010. Complainant claimed that she and Comparative 1 performed substantially the same work. Complainant also stated she performed substantially the same work as another CG-13 Senior Accountant, Comparative 2 (male). Comparative 2 retired in December 2007. Complainant stated Comparative 2 was the main person responsible for the Accounts Payable (AP) pay cycle. Complainant stated she served as a “back-up” to Comparative 2 and did the processing when he was not available. She stated that when he retired, she assumed his duties, including the AP pay cycle. Complainant alleges she still maintains those responsibilities, but is only paid at the CG-12 rate. Complainant states she also “took over” the duties of Comparative 3 (Caucasian, female) who was paid at a CG-13 level, when she retired from Disbursements in 2003 - 2004. Finally, Complainant identified Comparative 4, who worked in another group as a Senior Accountant. Complainant and Comparative 4 worked together on a project in 2003 - 2004 “developing a repository for assistance agreement transactions, which involved reconciling general ledger accounts and providing a narrative for each institution assigned.” On July 14, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and in reprisal for prior protected EEO activity when: Beginning in 2008, she has performed the duties and responsibilities of a CG-13 Senior Accountant, but has remained in the position and pay grade of a CG-12 Accountant. 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 requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision without a hearing on May 16, 2016. The AJ determined that while the tasks of the CG-13 Senior Accountant the CG-12 Accountant overlapped, the levels of skill, effort, and responsibility were not substantially equal. The AJ noted that as Comparative 1 was female, an EPA claim was not available and proceeded to analyze the Title VII claim. The AJ noted that regarding her reprisal claim, Complainant participated in EEO activity which included a grievance alleging discrimination filed decades earlier, participation in a discrimination class action filed in 2000, and a 2010 EEO complaint following her non-selection for a Senior Accountant position. Complainant also stated that comments she made during and following some of her performance appraisals and in connection with assignments constituted protected “opposition” activity. 0120162324 3 The AJ found that even if Complainant established a prima facie case of disparate treatment or reprisal, the Agency explained the reason for the pay differential was Comparative 1’s higher grade due to her selection for the CG-13 Senior Accountant position in 2010. The AJ noted Complainant claimed the Agency’s explanation was pretextual because, despite the grade difference, they both performed substantially the same job. Manager A noted the CG-13 Senior Accountant position had greater responsibility and authority than the CG-12 Accountant position. The CG-13 assignments were more complex accompanied with higher expectations. The AJ noted with respect to Comparative 1 and prior Senior Accountants, Complainant argued she performed substantially the same work. Specifically, Complainant referenced her duties of: (1) processing the accounts payable pay cycle; (2) handling general ledger reconciliation; and (3) assisting with work on the help desk, including handling W-2 inquiries. Complainant also handled the supplemental payment system reconciliation and reviewed/processed payment vouchers. The AJ noted Comparative 1 did not perform the accounts payable pay cycle task, so the other assignments identified by Complainant were compared. The AJ determined that regarding general ledger reconciliations, the undisputed evidence showed that the level of complexity and/or activity of the accounts differed significantly. Complainant was assigned reconciliation of two general ledger accounts. The “SPS Buyout Clearing Account” (No. 2023) consisted of only a few transactions a month. The “SPS/ESPS Clearing Account” (No. 2024) may have generated 20 - 30 transactions per day. The AJ noted during the same period, Comparative 1 was responsible for three general ledger accounts, two of which (nos. 2026 and 2305) were comparable to the two assigned to Complainant. However, Comparative 1 was also assigned Account No. 2021 which had several hundred transactions daily. Comparative 1 also assisted lower-graded Accountants in resolving reconciliation problems as they arose. The AJ noted Complainant also stated she and Comparative 1 worked on W-2 matters. Specifically, Complainant responded to employee inquiries submitted via the help desk. The AJ recognized that Comparative 1 managed the W-2 process which included issuance of thousands of tax forms and involved multiple systems. Comparative 1 also handled the more complex questions that arose with respect to W-2s. The AJ noted Comparative 1 managed “the year-end true-up process, which determined the appropriate tax levels for [Agency] employees, and the gross-up process, which deducts taxes at projected rates throughout the year.” The AJ noted Complainant also referenced her Supplemental Pay System (SPS) work as similar to what Comparative 1 performed. The AJ stated that while both Complainant and Comparative 1 were assigned work in connection with the SPS System, the unequal level of responsibility and complexity was evident. 0120162324 4 Complainant reviewed the manually-submitted SPS payment vouchers to ensure approval and supporting documentation. Complainant also compiled data regarding the number of SPS vouchers, and other types of payments, processed by the DOS during the month. The AJ noted in comparison, Comparative 1 acted as the subject-matter expert for all SPS activity. Comparative 1 worked with division managers/contractors, performed trouble-shooting, and addressed problems with the systems. Comparative 1 was responsible for ensuring that tax law changes were reflected in the systems. Comparative 1 also worked with contractors to design, develop, and troubleshoot changes to the systems. Thus, the AJ determined the work performed by Comparative 1 and Complainant was not substantially the same. The AJ found the claim that Complainant performed the same work as Comparative 3 lacked sufficient evidence. The AJ noted Complainant also identified Comparative 4 based on their collaboration on a project in 2003 - 2004. However, the AJ found the absence of additional information and the fact that Comparative 4 worked in a different unit made the comparison implausible. Regarding, the EPA claim, the AJ noted the sole named comparative was Comparative 2. Comparative 2 retired in December 2007, and Complainant claimed upon his retirement she assumed his primary duties. The AJ found Complainant failed to establish a prima facie case as it was based on an incomplete picture of Comparative 2’s work. The AJ noted that while Complainant and fellow co-workers argued Complainant performed the same work as Comparative 2 once he retired, their testimony on this matter was too general as they did not supervise him, nor profess knowledge of his annual performance evaluations. The AJ noted Comparative 2’s job of processing of the Accounts Payable pay cycle for Headquarters and Dallas was indisputably reassigned to Complainant. However, the AJ noted Manager A did not consider this to be work within the realm of Senior Accountants. Manager A noted that a CG-11 employee assumed this duty while Complainant was detailed to another unit. The AJ also noted Complainant argued that like Comparative 2, she also handled general ledger reconciliations. However, the AJ stated it appeared Complainant did not necessarily assume Comparative 2’s accounts; rather, she continued to handle her regularly-assigned accounts. Further, the AJ stated the general ledger reconciliations varied widely in terms of complexity and volume depending on the account involved. The AJ found as there was no specific information as to which accounts were assigned to Comparative 2, no assumption could be made as to complexity or level of activity. Moreover, the AJ stated that Complainant claimed that like Comparative 2, she responded to employee inquiries to the help desk, including W-2 inquiries. Manager A explained that Complainant was not the only employee assigned this duty. The AJ found assumptions as to this duty would not be reliable as the complexity of questions varied; as shown in Comparative 1’s case, she handled more complex inquiries in her role as Senior Accountant. 0120162324 5 Finally, the AJ stated that assuming a prima facie case, the Agency was entitled to its affirmative defense that Comparative 2’s higher pay was based on “factors other than sex.” Comparative 2 already encumbered a CG-13 position when he was reassigned to Complainant’s Division. The AJ found this showed Comparative 2’s pay was not attributable to his sex. The Agency subsequently issued a final order on June 7, 2016. The Agency’s final order fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant argues that she presented enough facts to require a hearing on the issue of her performing the same work as Comparative 2 on her EPA claim. Complainant notes she presented an affidavit that she was performing the same work as Comparative 2 and a spreadsheet which was attached to her opposition to summary judgment. Complainant states that the Agency tried to minimize her ability to observe; however, she argues that for the purposes of summary judgment the documents she presented must be believed. Complainant also claims that the Agency introduced a new defense in its rebuttal that there was a merit defense that Comparative 2 was brought in as a transfer. Complainant argues the Agency erred in presenting this evidence only in its rebuttal so that she could not present her contrary evidence. Further, Complainant claims that being brought in as a transfer does not equate to having performed greater or more difficult work. In response to Complainant’s appeal, the Agency argues the AJ’s issuance of a decision without a hearing was appropriate. The Agency notes Complainant did not challenge the summary judgment decision related to the disparate treatment and reprisal claims. The Agency states the evidence demonstrates that the job performed by Complainant was not substantially equal with the job performed by Comparative 2 prior to his retirement. Further, the Agency stated regardless of whether Complainant has made a prima facie case on her EPA claim, summary judgment is still appropriate because the Agency proved its affirmative defense that Comparative 2’s higher pay was based on a “factor other than sex” - i.e., he already encumbered a CG-13 position when he was reassigned to Complainant’s division. ANALYSIS AND FINDINGS 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”). At the outset, we note that on appeal Complainant does not challenge the grant of summary judgment regarding her Title VII claim. Therefore, we do not address it in this decision, as the Commission exercises its discretion to review only those issues specifically raised on appeal. 0120162324 6 See EEO MD-110, Chap. 9, at § IV.A (“Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion to focus only on those issues specifically raised on appeal.”). Upon review of the record, we find that there are no genuine issues of material fact presented here. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained herein. Despite Complainant’s contention on appeal, we find she had the appropriate opportunity to present evidence in support of her case. In the present case, we find that the AJ's issuance of a decision without a hearing was appropriate. 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. 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). Upon review, we find Complainant did not establish a prima facie case under the EPA. Specifically, Complainant failed to show that the work she performed was substantially equal to that of Comparative 2. Complainant’s vague assertions that she performed equal work was accompanied by general statements from two coworkers who acknowledged they never supervised Comparative 2 and were not privy to his performance appraisals. We note that Complainant did not establish that the work she performed required equal skill, effort, and responsibility as that performed by Comparative 2. Moreover, Complainant did not indicate there was existing evidence that if obtained could establish a prima facie case under the EPA. 0120162324 7 Further, we note the record contained clear evidence that Comparative 1, who held the same CG- 13 Senior Accountant position as Comparative 2, did not perform equal work as Complainant. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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. 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). 0120162324 8 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. 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. 0120162324 9 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 September 12, 2018 Date