01972118
06-27-2001
Wendy Wiley, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Wendy Wiley v. Department of the Treasury
01972118
June 27, 2001
.
Wendy Wiley,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01972118
Agency No.95-4145
Hearing No.340-96-3244X
DECISION
Complainant timely appealed the agency's final decision which concluded
that it had not discriminated against her in violation of the Equal
Pay Act of 1963, 29 U.S.C. �206 (d)(1) (EPA) and Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. 2000e et. seq. The Commission
accepts this appeal in accordance with 29 C.F.R. �1614.405.
ISSUE PRESENTED
Whether the EEOC Administrative Judge (AJ) properly decided to issue
a recommended decision without a hearing under the facts presented in
this case.
BACKGROUND
Complainant filed a formal EEO complaint under Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. 2000e et. seq., alleging
that the agency had discriminated against her on the basis of her gender
(female) when she was not promoted to GS-950-11 following selection
to the position. Following the agency's acceptance of this complaint,
an investigation was conducted. Thereafter, the complainant requested a
hearing with an EEOC AJ. Following the agency's motion for a recommended
decision without a hearing and appropriate opposition in response to
the motion submitted by complainant, the AJ concluded that the case was
appropriate for a decision on the record without a hearing. Thereafter,
on September 23, 1996, the AJ issued her recommended decision (RD) without
a hearing finding discrimination on the basis of a previously unasserted
EPA claim. The agency subsequently rejected the AJ's decision and issued
a final agency decision dated December 3, 1996, finding no discrimination.
The Administrative Judge's Recommended Decision
In her RD, the AJ, for the first time, construed the complainant's claim
as alleging gender-based disparity in wages. Thus, she determined that
the complaint was more suitable for analysis under the EPA rather than
Title VII. She found that the complainant established a prima facie
violation of the EPA in that the complainant performed with equal skill,
effort, responsibility and under similar working conditions the job of
paralegal specialist but that male paralegal specialists were approved for
promotion to the GS-11 level and she was not. The AJ also found that the
agency's justifications for payment of the complainant at the GS-9 level
did not come within the statutory exceptions to liability under the EPA.
She further decided that there was no genuine issue of material fact to be
decided at a hearing and issued her RD pursuant to 29 C.F.R.� 1614.109(e)
finding that the agency discriminated against the complainant under
the EPA. The AJ recommended retroactive promotion for the complainant
to a GS-11, back-pay with interest, within-grade increases due since
February 1991, attorney's fees and costs and liquidated damages.
The agency argued in comments on the AJ's decision made before it issued
its final decision, that the AJ inappropriately decided this case without
a hearing since she analyzed the case as an EPA claim. In the agency's
view, the investigation was done as if the claim were brought under Title
VII not the EPA. Its motion for a decision without a hearing analyzed
the complainant's claim only from a Title VII standpoint and did not
address it as an EPA claim. The agency further argued that even if the
EPA applies, based on the record evidence, the AJ erred in her finding
that the complainant established a prima facie case of discrimination
under the EPA. The agency contended that it provided an affirmative
defense which justified the difference in pay between complainant and the
male paralegal specialists cited as comparatives. Finally, the agency
contended that the AJ's evaluation of the evidence relied heavily upon
the unsupported representations made by the complainant in her affidavit.
The Agency's Final Decision
The agency's final decision rejected the AJ's Recommended Decision relying
on the fact that it stated legitimate non-discriminatory reasons for not
promoting the complainant which satisfied its burden under both Title
VII and the EPA. The agency concluded that the AJ erred in finding
that GS-9 paralegal specialists in the region performed the same work
as GS-11s and that it had not shown it met one of the exceptions under
the EPA. In the agency's view, it had shown that it was developing
quality/quantity standards to control the number of promotions to
the GS-11 level. Even so, the fact that a number of females had been
promoted to a GS-11 effectively refuted the complainant's claim of gender
discrimination. The agency's final decision concluded that there was no
discrimination based on the complainant's gender.
Complainant's Arguments on Appeal
Complainant asserts on appeal that the agency's reasons for not
promoting her were pretexts for discrimination. She claims that even
though the agency stated there was not enough GS-11 work to support her
promotion, she was performing higher level work at least 25% of the time.
The Complainant further contends that whatever objective measurement
standards existed as a result of the task force investigation which
limited non-competitive promotions should not have applied to her
because she had been promised a non-competitive promotion. Finally,
complainant contends that she maintained a fully satisfactory record
until 1995 during which time complainant was buried with cases that her
immediate supervisor refused to reassign.
ANALYSIS AND FINDINGS
Our review of an AJ's legal determinations and the decision to issue
a decision without a hearing pursuant to 29 C.F.R. � 1614.109 (g) is
based on a de novo standard of review. EEOC Management Directive 110
(MD-110) Chapt. 9-16 (1999).
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive law, no genuine issue of
material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court does
not sit as a fact finder. Id. The evidence of the non-moving party must
be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id. An issue is "genuine"
if the evidence is such that a reasonable fact-finder could find in favor
of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986)
; Oliver v. Digital Equip. Corp., 846 F 2d. 103, 105 (1st Cir. 1988).
A fact is �material� if it has the potential to affect the outcome
of the case. If a case can only be resolved by weighing conflicting
evidence, summary judgment is not appropriate. In the context of an
administrative proceeding under Title VII, an AJ may properly consider
summary judgment only upon a determination that the record has been
adequately developed for summary disposition.
In our review of the record, we determine that, there was a material issue
of fact to be resolved and that summary judgment was not appropriate
in this case. We also view the AJ's decision to apply the EPA where
such a violation had not been alleged and without giving the agency
an opportunity to be heard, as exceeding her authority. See e.g.,Gill
v. U.S. Department of Agriculture, EEOC Request No. 05930155 (May 26,
1994) (AJ exceeded her authority when she drew an adverse inference about
information not requested). Although the agency was not bound by the AJ's
Recommended Decision, the AJ was obligated to conduct her proceedings in a
manner giving the parties a fair and reasonable opportunity to explain and
supplement the record. EEOC Management Directive 110 (MD-110) Chapt. 7-1
(1999). Equity demands that a party be given adequate notice of the
grounds for a decision such that she has a full and fair opportunity
to respond. See Jones v. U.S. Postal Service, EEOC Request No. 05960483
(July 18, 1997)(Equity demands that a complainant be given notice of the
agency's grounds for dismissal in order that she may respond on appeal.)
The Equal Pay Act
A prima facie violation of the EPA arises when the complainant
demonstrates that the agency pays different wages to employees of
opposite sexes for equal work on jobs, the performance of which requires
equal skill, effort and responsibility and which are performed under
similar working conditions. Corning Glass Works v. Secretary of Labor,
417 U.S. 188, 195 (1974); See Telford v. Department of the Army, EEOC
No. 01973892 (November 2, 1999). We note that the EPA is limited
to certain sex-based differentials in wages. It 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. See 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).
After the AJ's decision, the agency commented on the elements of finding
an EPA violation before reaching its own final decision. The agency argued
that �the record is barren of what various employees did over this six
year period.� (Agency Comments on the Administrative Judge's Recommended
Decision (Comments) p. 20, (undated)). It further argued that the AJ
made findings without any factual record and there was no justification
for the finding that the complainant and her male GS-11 counterparts
performed duties that were substantially equal. Without benefit of
the agency's input, the agency argued, the AJ unfairly concluded it was
�unable to sustain its burden to prove that the disparity in payment was
justified by any seniority system, merit based system, system based on
quality or quantity or production or factors other than sex.� (Statement
of Findings and Recommended Decision in the Discrimination Complaint of
Wendy S. Wiley v. Robert Rubin, Secretary of the U.S. Dept. of Treasury,
(Decision) September 23, 1996). In fact, the agency addressed this
point after the AJ reached a decision, stating that there was no clear
understanding of what duties were being performed by GS-9 and GS-11
paralegals. (Comments p. 20).
These agency comments raised relevant points that could have been
considered by the AJ before issuing her Recommended Decision if the
agency had been placed on notice that the EPA statutory basis was at
issue and had been given the opportunity to present arguments.
Title VII
We turn now to the Title VII aspect of the complainant's claim. Claims of
disparate treatment are properly analyzed under the three-part analytical
framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); See also St. Mary's Honor Society v. Hicks, 509 U.S. 502 (1993);
and Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253-56 (1981). Once the complainant establishes a prima facie case
of discrimination, the agency must produce evidence of a legitimate
non-discriminatory reason for the actions in question, here its decision
not to promote the complainant. Id. The complainant must then prove that
the agency's reasons are a pretext to mask unlawful discrimination.
From our review of the record, the complainant established a prima facie
case of disparate treatment. She is a member of a protected class
(female), she was recommended for a promotion to a GS-11 position by
her immediate supervisor but was subsequently denied it, and the record
shows that male employees similarly situated were promoted during the
same time frame in which the complainant was recommended for a promotion.
The AJ's decision appears to also consider the complainant's Title
VII claim. In this respect, she determined only that the agency's
explanations for not promoting the complainant were not credible.
More specifically, she stated that �the multiple and sometimes
contradictory nature of the Agency's explanations for its conduct served
to establish that the stated reasons were unreasonable, pretextual,
and that they lacked good faith.� (Decision (Pretext) p. 17). To the
extent the record contains evidence supporting both sides of the issue
of whether the agency's non-discriminatory reasons were a pretext for
discrimination, we conclude that this was more properly the subject
of an evidentiary hearing. Consequently, the AJ's decision to issue a
decision without a hearing on this issue was made in error.
CONCLUSION
Therefore, based on the foregoing, it is the decision of the Equal
Employment Opportunity Commission to VACATE the agency's FAD, and REMAND
this matter to the AJ for a full consideration of the application of the
Equal Pay Act in this case. In the event it is found that the EPA does
not apply and that Title VII is more appropriately applied to the facts
of this case, we find that there is a question of fact on the issue of
pretext and that the AJ should hold an evidentiary hearing.ORDER
The agency is Ordered to take the following actions:
1. The agency shall submit to the Hearings Unit of the Los Angeles
District Office the request for a hearing within fifteen (15) calendar
days of the date this decision becomes final.
The agency is directed to submit a copy of the complaint file to the
Hearings Unit within fifteen (15) calendar days of the date this decision
becomes final. The agency shall provide written notification to the
Compliance Officer at the address set forth below that the complaint file
has been transmitted to the Hearings Unit. Thereafter, the Administrative
Judge shall issue a decision on the complaint in accordance with 29
C.F.R. � 1614.109 and the agency shall issue a final action in accordance
with 29 C.F.R. � 1614.110.
The AJ shall permit both parties to supplement the record with evidence
relevant to the elements of proof under the Equal Pay Act. Thereafter,
if the AJ deems necessary, written or oral arguments may be submitted
on the application of the EPA to the facts of this case.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
June 27, 2001
Date