0120055320_r
12-15-2006
W. Paul Lenz, Complainant, v. Henry M. Paulson, Jr. Secretary, Department of the Treasury, Agency.
W. Paul Lenz v. Department of the Treasury
0120055320
December 15, 2006
.
W. Paul Lenz,
Complainant,
v.
Henry M. Paulson, Jr.
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120055320<1>
Agency No. 04-2352
DECISION
Complainant filed an appeal with this Commission 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.
Complainant, a GS-9 Anti-Money Laundering (AML) Tax Specialist assigned
to the Small Business/Self Employed unit of the Internal Revenue Service,
filed his discrimination complaint on April 28, 2004. In his complaint,
he alleged that the agency discriminated against him on the basis of his
sex (male) when the AML Case Assignment Guide (CAG) was issued in March
2004, and complainant realized that since July 17, 2003, and prior to
the issuance of the CAG, he had been performing duties inappropriate
for his grade without receiving commensurate pay.
The agency concluded that complainant had not established a prima
facie EPA case for the period following the implementation of the CAG.
The agency stated that after CAG's implementation, complainant did
not perform work equal to Revenue Agents, regardless of their sex.
The agency found that under the current CAG, complainant's assignments
were limited with regard to complexity and geographical prominence.
The agency also noted that complainant had himself acknowledged that
the CAG substantially limited his opportunity to perform the higher
level work of Revenue Agents. The agency concluded that complainant
also failed to establish a prima facie case during the time period
before CAG implementation, noting that it was complainant's burden
to demonstrate that he engaged in equal work, requiring equal skill,
effort and responsibility in relation to specific female comparatives.
The agency also found that complainant offered no details comparing his
skill, effort or responsibility to the skill, effort or responsibility
of the two female comparative Revenue Agents, whose cases complainant
alleged were the same as those handled by Tax Specialists. The agency
also noted in its decision that Revenue Agents had a higher minimum
requirement of accounting credits than Tax Specialists and that it was
unknown whether complainant earned more than the minimally required
credits for Tax Specialists. The agency also found that it was unknown
whether complainant compensated for the education deficit with experience,
training and ability, such that his work was equal to the work of the two
female comparatives. The agency also concluded that even if complainant
had established a prima facie case under the EPA, the agency could avoid
liability if payment were made pursuant to a differential based on any
factor other than sex. The agency further concluded that there was no
reason to believe that complainant's pay would have been different had
he been female, explaining that he was paid less because he had a lower
grade and was in a different series than the Revenue Agents.
Regarding the Title VII discrimination claim, the agency concluded
that complainant failed to show that there was a causal connection
between membership in his protected group and the adverse action that
he suffered. The agency noted that although there was a couple of female
Revenue Agents who performed the same work as complainant yet received
greater compensation than complainant, there were also male Revenue
Agents who received greater compensation than the Tax Specialists.
The agency further noted that Tax Specialists, male or female, were
paid less compensation than female Revenue Agents. The agency noted
that complainant's real complaint was grade-based and not sex-based
because complainant himself stated that as a GS-9 his work was equal
to grades 11 and 12, females or males. The agency concluded that it
had articulated a legitimate, nondiscriminatory reason for its actions,
i.e., that complainant was in a lower graded position than the comparative
Revenue Agents.
As an initial matter, the Commission notes that because this is an
appeal from an agency 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. See 29 C.F.R. � 1614.405(a).
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, 195 (1974). Arnold
v. Department of Treasury, EEOC Appeal No. 01960490 (July 28, 1998),
req. for recons. denied, EEOC Request No. 05981115 (August 8, 2001).
A complainant must show that he or she received less pay than an
individual of the opposite sex for equal work, requiring equal skill,
effort, and responsibility, under similar working conditions within the
same establishment. Id. (citations omitted). The requirement of
"equal work" does not mean that the jobs must be identical, but only
that they must be "substantially equal." Id. (citations omitted).
In order to be considered substantially equal, the job duties must
be similar in the sense that they are "closely related" or �very much
alike.� Id. (citations omitted).
Once complainant has met the burden of establishing a prima facie case, an
employer 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 measures earnings by quantity or quality of production of work
(also referred to an incentive or piecework system); or (4) a differential
based on any other factor other than sex. Id. (citation omitted).
Regarding the Title VII claim, in the absence of direct evidence
of discrimination, the allocations of burdens and the order of
presentation of proof is a three-step process. 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, he or she must first establish a prima
facie case 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). Next, the agency must articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the agency is successful in meeting its burden, complainant must prove,
by a preponderance of the evidence, that the legitimate reason proffered
by the agency was a pretext for discrimination. Id. at 256.
This established order of analysis in Title VII 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 its action, the
factual inquiry can proceed directly to the third step of the McDonnell
Douglas analysis to the ultimate issue of whether complainant has shown by
a preponderance of the evidence that the agency's actions were motivated
by discrimination. See United States 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).
The January 9, 2003 desk audit results reflect that the duties performed
in the positions of GS-526 Tax Specialist series confirmed that the duties
and responsibilities of the position were appropriately classified as Tax
Specialist, GS-526. The record also reflects that a group composed of
management and union was convened to develop the CAG for the Form 8300
and Title 31 programs. The agreement is reflected in a letter, dated
February 26, 2004, and the guidelines became effective 30 days later.
The letter reflects that the CAG was to be used to identify cases to be
sent to the AML groups and would be used by group managers to assign cases
at the proper grade levels to Revenue Agents and Tax Compliance Officers
(Tax Specialists). Employees were to be assigned cases commensurate
with the General Schedule (GS) grade. AML Examiners were encouraged to
bring to the attention of their managers instances of misgraded cases.
The agency also determined that position descriptions in use in the
AML would be reviewed to ensure that they conformed with the new case
assignment guides and that any changes to position descriptions would
be made in accordance with the collective bargaining agreement. In the
February 26, 2004 letter, the agency indicated that the case assignment
guides were new and dealt with the agency's new priority work.
We find that complainant has not been able to establish that he
performed substantially equal work as females for less pay, in that
complainant failed to show that the work he performed required equal
skill, effort and responsibility, under similar working conditions
within the same establishment. While the positions of a Revenue Agent
and a Tax Specialist may have shared some overlap in case assignments,
the record does not establish that the positions were the same in
duties and responsibilities. Thus, complainant has not proven that
the agency violated the EPA. Regarding Title VII, complainant has
failed to establish that there was a causal nexus between complainant's
membership in the protected class and his not receiving the same pay.
The record indicates that any overlaps occurring affected both male
and female Tax Specialists and also that there were both male and
female Revenue Agents. Even if complainant were performing the work
of a GS-12 Revenue Agent, complainant has failed to establish that the
agency did so for prohibited reasons. At all times, the ultimate burden
of persuasion remains with complainant to demonstrate by a preponderance
of the evidence that the agency's reasons were pretextual or motivated by
intentional discrimination. Complainant has failed to carry this burden.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which
to file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 15, 2006
__________________
Date
1Due to a new data system, this matter has been re-designated with the
above referenced appeal number.