Zandra N.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Feb 9, 2016

0120142854 (E.E.O.C. Feb. 9, 2016)

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

Zandra N.,1
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120142854

Hearing No. 410-2013-00091X

Agency No. P-2012-0467

DECISION

On August 1, 2014, Complainant filed an appeal from the Agency’s June 30, 2014, final order
concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation 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

The record reveals Complainant began working at the Agency as a Correctional Treatment
Specialist (Case Manager), GS-05, in 1994. Between 1994 and 2001, Complainant was
promoted from a Case Manager GS-05, to 07, 09, and 11. From 2001 to 2008, Complainant
worked in Honolulu, Hawaii as a Unit Manager, GS-12, where she supervised Case Managers.
In March 2008, Complainant made a lateral move and became a Case Management Coordinator,
GS-12. Thereafter, in December 2009, Complainant relocated from Honolulu, Hawaii to
Atlanta, Georgia and was unable to find work in Correctional Programs. As a result,
Complainant took a position as an Accounting Technician in a different department.

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.
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From April 4, 2011, through April 25, 2011, the Agency announced a Vacancy Announcement
for a Case Manager, GS-07/09 in Atlanta with promotion potential to a GS-11. Complainant
applied and was selected as a Case Manager, GS-09 through a noncompetitive process effective
June 19, 2011.

On March 23, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of sex (female) when:

The Agency hired Complainant as a Case Manager GS-09 although other male Case
Managers were paid at the higher GS-11 rate.

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 timely requested a hearing
and the AJ held a hearing on July 31, 2013. The AJ issued a decision on May 21, 2014,
finding no discrimination. The Agency subsequently issued a final order fully implementing
the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

On appeal, Complainant claims the AJ erred by finding she did not establish a prima facie case
of discrimination under the EPA. Additionally, Complainant claims the Agency did not meet
its burden of proof in establishing an affirmative defense under the EPA. Complainant notes
the AJ found the Agency showed it relied upon a factor other than sex in setting Complainant’s
pay due to the government’s classification system, because Complainant had been out of the
position of Case Manager for more than one year, because of Complainant’s lack of experience
with the new Inmate Skills Development System (ISDS) system, and because Complainant did
not assume the caseload of a retiring Case Manager until January 2012. Complainant argues
that the Agency has not justified the connection between her experience and her GS-09 rating.
Complainant recognizes that the job announcement was for a Case Manager, GS-09, but she
states she was qualified to be a Case Manager, GS-11, and performed the same duties as a
Case Manager, GS-11 from her first day on the job.

Complainant also argues the Agency has not shown that its decision was based upon
Complainant’s experience. Complainant states that under the EPA, employees can offer higher
compensation to applicants and employees who have greater education, experience, training, or
ability where the qualification is related to job performance or otherwise benefits the
employer’s business. Complainant notes the AJ found management credible in its position that
Complainant required more supervision in her first few months back in the position to get her
back up to speed. Complainant claims she has shown that her experience level was greater
than that of her comparatives. Complainant states any concerns about her being “rusty” on the
duties should have been alleviated by the fact that immediately prior to her selection, she had
volunteered to cover some of the Case Management duties and did so without issue and
received a cash award. Further, Complainant states she was not unfamiliar with the ISDS
from her time as Case Management Coordinator and had no trouble using the system.
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ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

The United States Supreme Court articulated the requirements for establishing a prima facie
case of discrimination under the EPA in Corning Glass Works v. Brennan. 417 U.S. 188
(1974). To establish a prima facie case of a violation under the EPA, a complainant must
show that she or he received less pay than an individual of the opposite sex for equal work,
requiring equal skill, effort, and responsibility, under similar working conditions within the
same establishment. Sheppard v. EEOC, EEOC Appeal No. 01A02919 (September 12, 2000),
req. for reconsideration denied, EEOC Request No. 05A10076 (August 12, 2003).

Once a complainant has met this burden, an employer may avoid liability only by showing that
the difference in pay is justified under one of the four affirmative defenses set forth in the
EPA: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by
quantity or quality of production of work (also referred to as an incentive or piecework
system); or, (4) a differential based on any factor other than sex. Id. We note that the EPA is
limited to certain sex-based differentials in wages. The EPA does not prohibit discrimination
in other aspects of employment, even those that have compensation-related consequences, such
as hiring, firing, promotion, transfer, or other issues. Wiley v. Department of the Treasury,
EEOC Appeal No. 01972118 (June 27, 2001) (citing Schnellbaecher v. Basking Clothing Co.,
887 F.2d 124, 130 (7th Cir. 1989) (a claim of discriminatory promotions is beyond the scope
of the EPA but actionable under Title VII)).

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

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 it used a standard
process in advertising for the vacant Case Manager position. The record shows that a Case
Management position needed to be filled when an employee retired, leaving a Case
Management position vacant. While the employee that retired was a Case Manager, GS-11,
Human Resources and management made the decision to advertise for a Case Manager, GS-
07/09 in order to attract the largest possible applicant pool. The record reveals that
Complainant’s name went to the head of the selection list because she had previously done the
job. The Agency noted that Complainant was offered the position at the GS-09 level, even
though she had previously been a GS-11 because the position was advertised as a GS-07/09 and
GS-09 was the highest grade any candidate could be offered.

Additionally, substantial evidence supports the AJ’s finding that although Complainant had
previous experience at the GS-11 level, Human Resources and management were concerned
that Complainant had been out of the position for several years and would need to be brought
up to speed on the new ISDS computer software and wanted to verify that Complainant could
perform at the GS-11 level. The record reveals that when management determined within
Complainant’s first six months on the job that she was up to speed on all computer software
and that she was performing at the GS-11 level, equal to other employees in regard to caseload
and complexity, she was moved up to the GS-11 level, in less than the standard 52 weeks. In
the present case, we find that the Agency has established that the pay differential was based on
a factor other than sex.

CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:

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.

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Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
The request or opposition must also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
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time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

February 9, 2016
Date