0120130637
06-20-2014
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120130637
Hearing No. 430-2011-00153X
Agency No. DON-10-00066-02438
DECISION
On November 14, 2012, Complainant filed an appeal from the Agency's November 19, 2012, 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 of 1963 (EPA), as amended, 29 U.S.C. � 206(d) et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether Complainant has proven by preponderant evidence discrimination on the basis of sex (female) when she was paid less than a male colleague in violation of Title VII and the EPA for performing equal work, the performance of which required equal skill, effort, and responsibility under the same or similar working conditions.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Illustrator, YA-1820-02, at the Agency's United States Joint Forces Command in Norfolk, Virginia. On July 23, 2010, she filed an EEO complaint in which she alleged discrimination as set forth above.
The Agency accepted the complaint for investigation and, at the conclusion thereof, provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ) or, alternatively, a final decision from the Agency based on the record. Complainant timely requested a hearing. Therefore, her case was forwarded to the appropriate EEOC District Office and assigned to an AJ. The AJ assigned to the case held a hearing on September 5 and 6, 2012. On October 2, 2012, she issued a decision on the matter in which she found the following relevant facts.
Complainant was hired by the Agency for the Illustrator position on March 20, 2009. At the time of her hire, she worked for the Agency in a different position and her salary was $35,526. See Administrative Judge's October 2, 2012, Decision (AJ Decision) at 3. As an Illustrator, Complainant was hired by the Agency under the National Security Personnel System (NSPS) within the YA-2 pay band. This pay band covered three progression ranges, namely, (1) Investment (lowest); (2) Intellectual Capital (mid-level); and (3) Critical Asset (highest). Id.
Pursuant to the NSPS pay-setting rules, applicants with four to eight years of direct experience fell into the middle progression range, that is, Intellectual Capital. When applying for the Illustrator position, Complainant indicated on her resume that she had seven years of direct experience, which placed her in the Intellectual Capital (mid-level) progression level. Id. at 6. She was offered and accepted the Illustrator position with a total salary of $45,650. The AJ found credible the Agency's assertion that under Agency and NSPS guidelines, it could not pay Complainant "a penny more or a penny less." Id.
In March 2010, almost a year after Complainant's hire, the Agency hired another Illustrator, a male (Coworker) and Complainant's comparator in this case. Id. at 7. Complainant and Coworker held the same position and worked in the same facility. Their positions required the same skills, effort, and responsibility, and they worked under similar working conditions for the same employer. Id.
Prior to Co-worker's hiring, he worked for a different federal agency and was being paid a total salary of $80,345. Id. His resume indicated that he had ten years of direct experience. Pursuant to Agency rules, employees with nine or more years of direct experience fell into the highest progression range, that is, Critical Asset. Id. Based on this, Coworker was offered and accepted the Illustrator position in the Critical Asset (highest) progression range with a total salary of $76,047. Id. at 8.
In finding these facts to be the case, the AJ noted that she observed the witnesses' credibility, demeanor, and conduct at the hearing. She also noted, applying the legal standards of the EPA, that the pay differential between Complainant and Coworker was not based on a seniority system, a system which measures earnings by quantity or quality of production, or a merit system, but was based on something other than sex.
Based on her findings, the AJ determined that Complainant failed to prove sex discrimination in violation of Title VII and the EPA. The Agency thereafter issued a final order adopting in full the AJ's findings. In response, Complainant filed this appeal.
CONTENTIONS ON APPEAL
Both parties' contentions on appeal essentially restate their respective cases-in-chief and, as such, will not be addressed separately. Instead, their contentions are inherently addressed in the "Analysis and Findings" section below.
STANDARD OF REVIEW
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 for 29 C.F.R. Part 1614 (MD-110), Chap.r 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
I. Title VII
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802. Second, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. Complainant has established a prima facie case of sex discrimination, in that she is, in all material respects, similarly situated to Coworker, who is not a member of her protected group (sex - female).
We now turn our attention to the Agency's stated reasons for paying Complainant less than Coworker, her male comparator. Burdine at 253. The Agency stated that Complainant was paid less than Coworker because Coworker had more years of direct experience and was recruited from another agency in a different region where he was earning a higher salary. The Agency also stated that it was limited by established guidelines as to what it could pay Complainant based on her previous salary within the Agency. We find the Agency's stated reasons for its action to be legitimate and nondiscriminatory. In so doing, we note that Complainant's salary increased once she accepted the Illustrator position, whereas Coworker's salary decreased.
In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. In order to prevail, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reasons were pretexts for discrimination. Complainant can do this by showing that the Agency's explanations are unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus because of her sex. We agree with the AJ that Complainant has failed to carry her burden. She has offered no evidence or arguments which persuade the Commission that the pay differential at issue in this case was based on discriminatory animus because of sex.
II. The Equal Pay Act
The U.S. 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). To establish a violation of the EPA, Complainant must show that she received less pay than a male employee for equal work, requiring equal skill, effort and responsibility, under similar working conditions within the same establishment. Id. at 195; Sheppard v. Equal Employment Opportunity Commission, EEOC Appeal No. 01A02919 (September 12, 2000); see also 29 C.F.R. � 1620.14(a).
Once Complainant has met her burden of establishing a prima facie case, the Agency 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, 29 U.S.C. � 206(d)(1); Corning Glass Works, 417 U.S. at 196-97; Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982). The requirement of "equal work" does not mean that the jobs must be identical, but only that they must be "substantially equal." Id. (citing Corning Glass Works, 417 U.S. at 203, n. 24; Homer v. Mary Institute, 613 F.2d 706, 714 (8th Cir. 1980); Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 449 (D.C. Cir. 1976)).
The AJ found that the Agency did not prove that the pay differential between Complainant and Co-worker was based on a seniority, merit, or incentive system. She did find, however, that the Agency proved that the pay differential was based on a factor other than sex. In so doing, the AJ noted that the Agency proved that Coworker was hired with more years of direct experience than Complainant, which placed Coworker in the Critical Asset (highest) progression, whereas Complainant's experience placed her in the Intellectual Capital (mid-level) progression. The AJ also noted that Coworker's resume listed more professional training courses than Complainant's. Finally, the AJ noted that Complainant lacked engraving experience upon taking the job whereas Coworker did not, a reason cited by the Agency as one of the reasons for the pay differential. Based on this, we agree with the AJ and find that the Agency avoids liability in this case because it has successfully proved the existence of one of the four affirmative defenses available under the EPA.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's findings of fact are supported by substantial evidence and that her application of the law to those facts is legally sound. We therefore AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
June 20, 2014
Date
2
0120130637
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130637