Vaughn C.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJun 23, 20160120152918 (E.E.O.C. Jun. 23, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vaughn C.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120152918 Hearing Nos. 560-2014-00064X, 560-2015-00212X Agency Nos. 2003-0116-2012104115, 2003-0686-2014103310 DECISION On August 25, 2015, Complainant filed an appeal from the Agency’s July 29, 2015, 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., and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND During 2012, Complainant worked as a GS-11 Clinical Applications Coordinator (CAC) at the Leavenworth campus of the Eastern Kansas Health Care System (EKHCS). During this time, the EKHCS consisted of the Leavenworth campus and the Topeka campus. The Supervisory IT Specialist of the EKHCS was Complainant’s first line supervisor (S1). The Chief Information Officer of the EKHCS was Complainant’s second line supervisor (S2). On May 31, 2012, Complainant and several others were on a conference call discussing the upcoming realignment of CAC positions from the Office of Information and Technology 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. 0120152918 2 (OI&T) to the EKHCS. During the telephone conversation, Complainant became aware that a White, female CAC (Comparative) who was assigned to the Topeka, Kansas campus was rated and paid as a GS-12 while he was paid at the GS-11 level. Complainant inquired into this and learned that the Comparative had requested a desk audit in 2009, and that as a result of the audit her position had been upgraded to that of a GS-12. Complainant discussed the possibility of a desk audit for his position in order to reclassify it as a GS-12 position. However, after reviewing his duties, it appeared as though his CAC position would be downgraded and reclassified as a GS-9 position, so the classification process was abandoned. On November 5, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and in reprisal for prior protected EEO activity when: 1. On May 31, 2012, Complainant became aware that his counterpart at another facility was being compensated at a higher rate of pay than him. 2. On June 25, 2012, Complainant sent an electronic mail message to the Chief Information Officer, inquiring about the difference in pay; however, he did not receive a response. 3. On July 24, 2012, the Human Resources Officer, Topeka, sent an electronic mail message to Person A, Complainant, and other unnamed individuals, stating that VAMC Topeka officials did not have the authority to address the pay disparity because the CAC positions belong to OI&T.2 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 initially requested a hearing but later withdrew the request. The AJ remanded the complaint to the Agency for a final decision. In September 2013, Complainant was selected for promotion to an IT Specialist/CAC, GS-12. Since September 2013, the Associate Director has been Complainant’s first level supervisor (S1a). For the period of March 2007 to August 2013, Complainant was president of the Union at the facility. Complainant began dedicating 100% of his time to the Union duties in 2011, and since that time he had not been performing his CAC duties, yet was retained as a CAC in the organizational structure pursuant to the Union contract. 2 Complainant initially alleged that he was subjected to a hostile work environment with regard to these claims and identified age as a basis. During the investigation of his complaint, Complainant clarified that he was not alleging a hostile work environment and was not alleging age as a basis. During the investigation, the Agency noted that claims (2) and (3) were background information regarding claim (1). 0120152918 3 On August 22, 2014, Complainant filed a formal complaint alleging he was subjected to a hostile work environment on the bases of race (African-American), sex (male), and disability when: 1. In October 2013, the Acting Business Office Manager and the Business Office Coordinator, permanently denied Complainant access to the computer scheduling package. 2. On October 29, 2013, the Acting Business Office Manager denied Complainant access to various computer packages his counterpart in Topeka, Kansas is allowed access. 3. On December 23, 2013, the Associate Director gave Complainant wrong instructions on how to request computer options so he could perform his duties. 4. On May 7, 2014, the Associate Director denied Complainant’s request for sick leave. 5. On June 3, 2014, the Associate Director permanently denied Complainant access to the computer option for testing quick orders and order sets. 6. On June 18, 2014, and August 6, 2014, the Information Security Officer permanently denied Complainant access to the FileMan Bare Essentials computer package. The Agency dismissed claim (1) as constituting a discrete act that was not raised within 45 days of occurrence. However, the Agency noted this incident would remain part of Complainant’s harassment claim. The Agency accepted the remainder of the claims. Following the investigation on the accepted issues, 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 requested a hearing but the AJ denied the hearing request. Complainant has not contested the denial of a hearing in the instant appeal. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency consolidated complaint 1 and complaint 2 for joint processing and issued a consolidated final decision on July 29, 2015. The Agency reframed the claims as follows: A. Complainant alleges he was subjected to disparate treatment based on his sex (male) in violation of the Equal Pay Act (EPA) when on May 31, 2012, he became aware that a Comparative at another facility was being compensated at a higher rate of pay than him; 0120152918 4 B. Complainant alleges he was subjected to disparate treatment based on race (African- American), sex (male), and in reprisal for prior EEO activity when on May 31, 2012, he became aware that a Comparative at another facility was being compensated at a higher rate of pay than him. C. Complainant alleges he was subjected to disparate treatment based on race (African- American), sex (male), and disability when on May 7, 2014, his request for sick leave was denied. D. Complainant alleges he was subjected to disparate treatment based on race (African- American), sex (male), and disability when on June 3, 2014, he was permanently denied access to the computer option for testing quick orders and order sets; E. Complainant alleges he was subjected to disparate treatment based on race (African- American), sex (male), and disability when on June 18, 2014 and August 6, 2014, he was permanently denied access to the FileMan Bare Essentials computer package; F. Complainant alleges he was subjected to harassment resulting in a hostile work environment based on race (African-American), sex (male), and disability in connection with six incidents occurring October 2013 through August 6, 2014. The Agency final decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. With regard to his claim under the EPA, the Agency stated Complainant established a prima facie case of wage discrimination. The Agency found that it established that the pay differential that existed between Complainant and the Comparative was based upon a factor other than sex. Specifically, the Agency noted the Human Resources Chief explained that although Complainant and the Comparative were CACs, they were paid at different grade levels due to the different levels of complexity of their assigned duties. The Agency noted that according to S1, the largest part of Complainant’s duties consisted of training customers in the use of the Computerized Patient Record System (CPRS). S1 noted Complainant also approved accounts for customers who were the medical practitioners and personnel who use the medical records. S1 stated Complainant would assist customers if they were having issues in the record and also provide support and answer customers’ questions about the use of the CPRS. S1 stated that customers would contact Complainant if they were locked in a record or if they improperly put a note on a record. The Agency stated Complainant was capable of correcting errors or deleting comments in records. The Agency noted that the Comparative’s duties consisted of those duties assigned to Complainant, but she performed her duties at the Topeka campus. The Agency stated that the Comparative provided training and worked with customers who had questions about the CPRS application. The Agency noted that in addition to the duties that both she and Complainant performed, the Comparative was also charged with development and maintenance features in the CPRS package. The Agency stated that most importantly, the Comparative was also responsible for designing, developing, deploying, and implementing “clinical reminders.†S1 0120152918 5 explained that the Comparative’s duty regarding developing clinical reminders was a programming type feature where she would go in and develop specialized plug-ins to work with CPRS based on requirements she received from customers from both Leavenworth and Topeka. S1 noted that the clinical reminders for which the Comparative was responsible, required a much more complex and heavy-duty level of effort than the other duties that are associated with being a CAC. The Agency noted S1 stated that the development of clinical reminders weighed heavily on the hospital’s ability to meet performance measures both at a Veteran’s Integrated Service Network (VISN) and a national level. The Agency also noted that S2, the second level supervisor to both Complainant and the Comparative, stated that Complainant and the Comparative performed the same basic core duties as CACs; however, she maintained that the Comparative additionally performed advanced support and dealt with the more highly complex problems requiring more effort. S2 also stated the Comparative provided on-call support which Complainant did not do and participated and responded to committees. Thus, the Agency determined the pay differential was based upon a factor other than sex. With regard to Complainant’s claim of disparate treatment, the Agency bypassed the prima facie analysis as it articulated a legitimate, nondiscriminatory reason for its conduct. With regard to the claim of disability discrimination, the Agency assumed Complainant was a qualified individual with a disability. With regard to claim (B), the Agency noted that S1 and S2 agreed that Complainant and the Comparative both held CAC positions requiring the same core duties. However, the Agency noted that both management officials maintained that the Comparative was required to perform additional and more complex duties, particularly with the CPRS and clinical reminder application. The Agency noted the Comparative assisted with the design of the clinical reminder application and was required to respond to questions and problems with that application. The Agency stated Complainant was not involved in that application at all. The Agency also noted that the Comparative’s work was more complex as a result of her work with the clinical reminder application and she was known as an “expert†in that area. The Agency stated the Comparative was required to work with management officials throughout the facility, region, and even nationally in training them on the application as well as in designing new methods for use of the application. The Agency stated Complainant was responsible for only the core duties of the CAC position. The Agency explained that due to the differences in duties performed and the responsibilities assigned to each, the Comparative was paid at the GS-12 level and Complainant was paid at the GS-11 level. With regard to claim (C), the Agency noted that Complainant stated that S1a did not actually deny his request for sick leave and in fact granted the request. Rather, the Agency noted that Complainant stated that his doctor had advised that he take three weeks off work due to stress. However, Complainant stated that his doctor had advised that he was able to work his second job as a nurse during this time because it was “therapeutic.†Complainant explained that management granted him the three weeks of sick leave, but they told him that he could not 0120152918 6 work his second job while on sick leave from his CAC position. The Agency noted that S1a told Complainant if he did work the second job while on sick leave, he would be charged Absent Without Leave (AWOL) and could be disciplined. The Agency noted as a result, Complainant took the sick leave, but he did not work his second job. Complainant stated that he asked for a copy of the policy S1a was quoting, but S1a never provided him a copy of the policy. The Agency noted that S1a was out on leave when Complainant initially presented the request for three weeks of sick leave to the Acting Associate Director. S1a stated that the Acting Associate Director initially denied the request, since Complainant did not provide the necessary medical documentation to be off for more than three consecutive days. When S1a returned to work and Complainant supplied documentation of the need for time off, he approved the request. S1a advised Complainant that when an employee is on sick leave, they are considered “incapacitated for work,†and therefore it is inappropriate to work a second job. The Agency noted Complainant agreed he would not work the second job, so S1a “took his word for it.†S1a did recall Complainant asking him for a copy of the policy which addressed the issue of sick leave and a second job, and he stated he asked HR for a copy of it. However, S1a thinks that it got lost in the shuffle and he admitted he did not provide it to Complainant. With regard to claim (D), the Agency noted Complainant stated he was denied the “provider key†by S1a because he was given erroneous information by S2. Complainant claimed that S2 provided S1a the wrong information “with malice.†The Agency noted that Complainant admitted that the Comparative does not have the key, but he stated that if she wanted the key she has the option to give herself access. Complainant claimed he was denied the key based on his sex, race, and disability to make the Comparative “look superior and me to look dumb.†The Agency noted that S1a stated Complainant was not given access to the “provider key†because he was not a provider. The Agency noted that S1a explained that the “provider key†was given to doctors, nurses and clinical staff to enable them to put orders and notes in patient records. The Agency noted that S1a consulted with S2 about Complainant’s request, and S2 advised him that it was inappropriate for a CAC to have the “provider key.†The Agency noted the Information Security Officer (ISO) stated that it was his job to make sure the network at the hospital was protected. The Agency recognized that the ISO had the capability of approving access to certain applications. The Agency noted that if a request was made for access which could seriously impact the integrity of the system, that type of elevated privilege had to be requested through the regional office. The ISO stated all requests went through him, but all requests had to be justified. The ISO stated if there was adequate justification for need in connection with one’s job duties, he approved the requests as long as the training for access to that particular system had been completed. The ISO noted that if appropriate training was not completed, then he rejected the request. The Agency noted that if higher level approval was necessary, the decision was made by the regional office. 0120152918 7 The Agency noted the ISO did not recall denying any of Complainant’s requests, but stated that if he did, it was likely due to the fact that Complainant did not provide justification for needing access. The ISO maintained that Complainant has “never been really good at justification.†The Agency stated the ISO recalled Complainant making a request for access to “order sets†of other facilities such as Wichita, Kansas City, and Columbia, but the ISO did not have the authority to approve that request. The ISO stated that the ISOs with those facilities would have to approve Complainant’s access. The Agency noted that Complainant did not justify his need for access, other than to say he wanted it “maybe in case†he needed it. With regard to claim (E), the Agency noted Complainant claimed that he has “very minimum access†to the computer system whereas the Comparative has the “keys to the kingdom.†The Agency noted that Complainant maintained he needed access to the FileMan computer package, which would allow him to switch his identity on another person’s computer to see if an option is working. The Agency noted Complainant stated that the Comparative has the program but management told Complainant that he did not need the program. The Agency noted that S2 stated that she was aware of the fact that Complainant wanted access to the FileMan program. S2 noted Complainant included his request “with a multitude of other menu options†he wanted. The Agency stated S2 did not deny any request but sent the request back to the Automated Data Processing Application Coordinator (ADPAC) for the Business Office requesting they review Complainant’s request and resubmit it containing only the options the Complainant actually needed for performing his duties. S2 stated that not having access to this particular program would not prevent Complainant from doing his job. In addition, the Agency noted the ISO maintained that he did not deny Complainant access to the FileMan system. The ISO stated that when Complainant requested it, he put together a package and asked Complainant to provide him with justification for needing the system. The ISO stated Complainant could not provide justification, so the ISO asked Complainant if someone else could provide the justification for him. The Agency noted Complainant referred the ISO to another CAC at the Augusta, Georgia facility who used the FileMan program. The Agency noted that the ISO said based on the other CAC’s response that he used the program in connection with his CAC duties, he approved the FileMan program for Complainant. The ISO stated he did not have the time to rework the justifications provided with employees’ requests if they were not right. The ISO stated he did it in this case so he has no idea why Complainant was alleging he denied the request. In summary, the Agency stated Complainant was provided with the computer programs and options he needed in order to perform his duties. The Agency stated Complainant was not provided with options for which he was unable to provide legitimate justification. The Agency noted that Complainant often requested access he did not need in order to perform his CAC duties. The Agency explained that when unnecessary options were requested, they were denied. The Agency stated that all management officials denied that any of their decisions with regard to the computer options provided to Complainant were based on his sex, race, 0120152918 8 disability, or his protected activity. The Agency noted Complainant failed to show that the Agency’s explanations were a pretext for discrimination. With regard to his claim of harassment, the Agency stated that given the finding of no discrimination regarding Complainant’s allegations of discrimination with his pay, the denial of his request for sick leave, the denial of access to the computer option for testing quick order and order sets, and the denial of access to the FileMan Bare Essentials computer package, those incidents cannot now be included in Complainant’s harassment claim. The Agency stated that the remaining incidents cited by Complainant in support of his harassment allegation include the denial in October 2013 of access to the Computer Scheduling Package, the denial on October 29, 2013 to various computer packages to which the Comparative was allowed access, and providing him with incorrect instructions on December 23, 2013, regarding how to request computer options. The Agency claimed that all the remaining incidents alleged by Complainant to evidence the alleged harassment were common workplace events. The Agency noted Complainant alleged harassment when he was permanently denied access to the Computer Scheduling Package in October 2013. Complainant claimed he needed that package because it generated a letter to the veteran telling him that he/she has an appointment on a particular date. Complainant also stated he needed the package because providers often put information in the wrong location in the record, and Complainant stated that he needed to make corrections. The Agency noted that Complainant stated when discussing the program with the Business Office Manager and the Business Office Coordinator, he pointed out that the Comparative has access to the package and he also wanted access. The Agency stated the Business Office Manager did not recall discussing Complainant’s need for the Computer Scheduling Package, but did recall a discussion during which Complainant “took every opportunity to degrade [the Comparative.]†The Agency noted Complainant had just returned to the department and the Business Office Manager advised Complainant that the Comparative was well liked and told him it would not help him to “run down†the Comparative. The Agency noted the Business Office Coordinator stated that she was responsible for obtaining access to the Computer Scheduling Package, but only for individuals who worked within the Business Office. The Business Office Coordinator stated she told Complainant that if he needed access, he would need to enter a request into the system and then take the four required trainings. The Business Office Coordinator explained that Complainant had been “out of the system†for several years and that many changes had been made in his absence. The Business Office Coordinator stated that Complainant was not really denied access to the package, but that he had not taken the necessary training and he did not want to follow the proper steps to gain access. The Business Office Coordinator opined that Complainant did not really need access to that program because he was not responsible for scheduling patients. 0120152918 9 The Agency noted that the Comparative stated she did have access to the Computer Scheduling Package, but that it is not necessarily needed by CACs. The Comparative stated that CACs instead use the Patient Care Encounter (PCE) package, which provided scheduling information. The Comparative noted she had the package because of her prior history working in Medical Administration Service and as a secondary support person in the OI&T. The Comparative explained that she performed several duties that Complainant did not, so she had access to some systems he did not. Specifically, the Comparative stated she performed all duties regarding clinical reminders and reminder dialogues for all of EKHCS and that Complainant does not perform those duties. The Comparative also stated she handled the scheduling and the Admission, Discharge, and Transfer (ADT) package, which Complainant did not do. The Comparative noted that she had been responsible for those duties for quite a while; these were duties for which she needed access to the packages before the realignment of the CAC duties and that she retained her access after the realignment. Further, the Comparative stated a CAC does not need the scheduling package because they are not responsible for scheduling veterans or canceling appointments. Rather, the Comparative explained that she retained that package as the secondary support person for OI&T. The Comparative stated that CACs use the PCE package, which does show scheduling information. The Agency noted the Comparative stated that after Complainant returned to his CAC duties, she noticed that he was missing some menu items. The Comparative stated she sent messages asking that certain options be provided to him and justified his need for those items. The Comparative explained that there were just some options that were overlooked when Complainant returned to his CAC duties and his computer access was set up for him. Finally, the Agency noted that Complainant claimed that S1a provided him with the wrong instructions in December 2013, regarding how to request certain computer options. Complainant was told he needed to submit an “elevated privilege request†to the regional office to obtain certain computer options. Complainant stated that he followed S1a’s instructions and later discovered the instructions were wrong and that he did not need to go to the regional level. Complainant stated his ability to do his job was affected by the incorrect instructions and it caused him “frustration and confusion.†Complainant stated he went to S2 and requested access and she denied it saying he did not need it. The Agency noted that S1a maintained he gave Complainant the correct instructions as provided to him by S2. The Agency stated the options Complainant wanted were in addition to the basic CAC packages. The Agency noted that S2 advised Complainant to submit a request to each service ADPAC who had the menus that he wanted, and that they would be the ones to approve his requests. The Agency noted that S2 explained that Complainant needed to build his collection of menus based on what was needed to do his job. The Agency concluded that Complainant did not show that the issues with his computer had any nexus to his sex, race, disability, or protected activity. On appeal, Complainant only addresses the issues of his EPA claim and his claim that he was subjected to disparate treatment when he was not compensated at the same rate of pay as the 0120152918 10 Comparative. Complainant argues that he established a prima facie case of discrimination under the EPA. Complainant spends a large portion of his brief arguing that he performed substantially equal work as the Comparative. Complainant states that even if the Comparative had more experience, performed more complex duties, required more effort, or had more responsibilities, her job did not require more experience, effort, and responsibilities. Complainant points out that the Comparative’s position description did not list the additional duties identified by the Agency. Complainant also alleges that with respect to his disparate treatment claim, the Agency’s articulated reasons for the pay difference were not the true reasons, but were pretextual. In response to Complainant’s appeal, the Agency states that Complainant merely disputes the discretionary assessment of the relevance of his and the Comparative’s function. The Agency claims Complainant fails to demonstrate a systematic bias. The Agency states that Complainant ignores the fact that there were other, male and female, IT specialists compensated at the GS-12 level. The Agency also notes Complainant ignores the fact that his initial requested desk audit, which was not conducted by the allegedly discriminating official, indicated that he was performing at a GS-9 level. The Agency states Complainant attempts to downplay the technical abilities of the Comparative and the marked difference in their day-to-day functions. The Agency notes to accomplish this, Complainant focuses on the core functions of the positions; however, the Agency argues it is clear from VA Handbook 5003/2 that position descriptions do not, and are not meant to, delineate every task performed by an employee. The Agency argues the evidence establishes that the Comparative performed additional development and maintenance functions; the Comparative had additional on-the-job training/experience; the Comparative was tasked with training other CACs within the VISN; and, the Comparative had independent authority to interact with providers to enable the development of applications. The Agency notes that Complainant did not perform any of these functions and thus, was not given the higher compensation. Further, the Agency states Complainant cannot show that the articulated legitimate, nondiscriminatory reasons are a pretext for discrimination. The Agency states that Complainant’s only evidence of pretext is the fact that he was not informed of the reclassification of the Comparative’s position. The Agency argues that it was not under any affirmative duty to keep Complainant apprised of developments in the Comparative's career advancement. The Agency further notes that the Comparative’s position was reclassified as a result of her request for a desk audit. The Agency argues Complainant has not presented any corroborating testimony or documentary evidence to establish that any action was based on discriminatory animus. 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 0120152918 11 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 lawâ€). At the outset, we note Complainant does not challenge the definition of the claims as identified in the Agency’s final decision. Moreover, we note that on appeal, Complainant only challenges the claims of compensation discrimination under the EPA and Title VII raised in complaint 1 (Claims A and B). Because Complainant does not contest the Agency’s finding of no discrimination on complaint 2 on appeal (Claims C through F), we AFFIRM this finding of no discrimination and we will not address complaint 2 further in this decision. 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). All forms of pay are covered by the EPA, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits. See EEOC Compliance Manual, Section 10: Compensation Discrimination (Dec. 5, 2000); 29 C.F.R. § 1620.10. Once a complainant has met the burden of establishing a prima facie case, 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)). In the present case, assuming arguendo Complainant has established a prima facie case of a violation under the EPA, we find that the Agency has shown the difference in pay was justified based on a factor other than sex. Specifically, the Agency has shown that although 0120152918 12 Complainant and the Comparative were both CACs, they were paid at different grade levels due to the different levels of complexity of their assigned duties. With regard to Complainant’s disparate treatment claim, we find the Agency presented a legitimate, nondiscriminatory reason for its actions. The Agency stated that the Comparative was required to perform additional and more complex duties, particularly with the CPRS and clinical reminder application. Upon review, we find Complainant failed to establish by a preponderance of evidence that the Agency’s actions were a pretext for discrimination. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 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. The requests 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 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 0120152918 13 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 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 June 23, 2016 Date Copy with citationCopy as parenthetical citation