0120120975
05-07-2012
Donna M. Hensley, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Donna M. Hensley,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120120975
Hearing No. 451-2010-00064X
Agency No. 8Z0J09016
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 14, 2011 final order concerning an 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, as amended, 29 U.S.C. � 206(d), et seq.
BACKGROUND
During the period at issue, Complainant worked as a Research Medical Technologist, YH-0644-02 at the Agency's 59th Clinical Research Lab Division, Laboratory Division in Lackland Air Force Base, San Antonio, Texas.
On March 5, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the basis of sex (female) by paying male employees in positions equivalent to hers a higher salary than it paid her.
The laboratory where Complainant worked provided routine and highly specialized developmental and analytical support of clinical research projects in such diverse areas as cell/tissue culture, clinical microbiology, biochemistry, hematology, coagulation, immunology, radionuclide technology and flow cytometry. The laboratory was divided into five sections, with Complainant and four co-workers each responsible for one section. During the relevant time, Complainant was responsible for the Microbiology section.
In 1990, Complainant was hired in a temporary position as Medical Technologist, General Schedule (GS)-09. In 1992, her position was made permanent and Complainant was promoted to the GS-11 level, and promoted again to the GS-12 level in 2005. In October 2006, the Agency replaced the GS series with the National Security Personnel System (NSPS). Complainant's pay band in the NSPS was YH-02, which basically encompassed the GS levels 9 through 13. Prior to October 2006, Complainant was classified as GS-0644-12, and was earning $68,519 a year. Effective October 15, 2006, Complainant was reclassified as a YH-0644-02, earning $69,877 a year.
A named male Medical Technologist (MT) was responsible for the Hematology/Coagulation section. MT began his employment with the Agency at the GS-11 level, but was subsequently promoted to the GS-12 level after he was named "Civilian of the Year." Prior to October 2006, MT had been classified as a GS-0644-13, and was earning $91,365 a year. Effective October 15, 2006, MT was reclassified as a YH-0644-02, earning $92,453 a year.
Another named male Medical Technologist (MT2) was classified as GS-0644-13, and was earning $91,242 a year before the NSPS. Effective October 15, 2006, MT2 was reclassified as a YD-1320-02, and was no longer classified as a Medical Technologist. Instead, he was classified as a Chemist in the Scientific and Engineering career group.
The record reflects that a named female Medical Technologist (MT3) was responsible for the Toxicology section. Before October 2006, Mt3 had been classified as a GS-0644-12, and was earning $70,595 a year. Effective October 15, 2006, MT2 was reclassified as a YH-0644-02, earning $71,514 a year.
A fourth female Medical Technologist (MT4) was responsible for the Cell Biology section. Before October 2006, MT4 had been classified as a GS-0644-12, and was earning $74,747 a year. Effective October 15, 2006, MT4 was reclassified as a YH-0664-02, earning $76,557 a year.
Complainant contended that before the conversion from the GS to NSPS, all of the employees in her duty section were performing under the same performance plan, and that after the conversion, they all had the same job objectives. Complainant argued that all five employees in her unit were required to perform the same duties and were measured against the same performance plan.
Complainant further contended that the positions of MT and MT2, and her own position, were substantially equal, and required the same skills; physical and mental exertion; the same level of independence, responsibility, and accountability; and that they worked in the same establishment under the same working conditions. Complainant argued that she had more seniority than MT, and more "time in position" than MT2. Furthermore, Complainant stated that although she had a bachelor's degree, the level of education could not be a factor in the difference in the salary because MT and MT2 were paid the same even though MT2 had a doctorate and MT only had a master's degree.
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
On May 19 and 20, 2010 and June 11, 2010, a hearing was held before the AJ. After considering the testimony of the witnesses, the AJ found that, based on the evidence of record, Complainant did not prove by a preponderance of the evidence that she was receiving less pay than MT or MT2 for equal work, requiring equal skill, effort and responsibility under similar working conditions within the same establishment.1 The AJ further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
The AJ noted that during his testimony, Complainant's immediate supervisor (S1) stated that employees' job objectives are different on their performance plans and on the position descriptions. Specifically, S1 stated that employees' position description "details what the job is required to do and the qualification for that job. The objectives relate how an employee is assessed at performing the job they have been hired to do. And position description is what is used to hire the employee."
S1 stated that Medical Technologists get their workload based on whether an investigator has a protocol that requires their specialties. S1 stated further that, "[if] it requires microbiology, then [Complainant] is involved. If it requires hematology or coagulation type testing, then [MT] is involved. If it requires both, they're both involved." S1 further stated that the other part of the Medical Technologist's job would be to perform research that they carried out on their own whether it was a protocol proposed by themselves or by others.
S1 acknowledged that Complainant and MT worked under similar working conditions, but stated that their skill sets were different. Specifically, S1 stated that Complainant and MT's skills "are completely different jobs. There are different skills required to perform each job. Compared to [MT], [Complainant] is in the same job series; however, [MT's] job is hematology, coagulation specialist; [Complainant] is a microbiologist. The skill sets required of their jobs are totally different." S1 stated that Complainant used "standard" procedures that supported research whereas MT developed and adapted methods to meet research requirements.
Further, S1 testified that MT conducted more significant research at his level than Complainant. For instance, S1 stated, "the impact of the new heparin curve nomogram that [MT] developed, as well as this new warfare genetics research that was done to develop a new method to see who was affected by certain drugs versus who is not, is a different level ...[and] one of the projects that I'm aware of that [Complainant] has done - - two of the projects - - one was to culture combat boots to see what bacteria were found in combat boots from soldiers. Another was to look at stretchers. I know there was a joint project that they worked together to look at tourniquets and the bacteria that are common on tourniquets when people are drawing blood. That's a different level of science versus developing new methods and inventing methods to modify the clinical care - - standard of care for patients."
The record reflects that MT's work also included a patented skin test to identify whether a wound could be the result of a brown recluse spider bite. S1 testified that other work MT "has done repeatedly is, he works with manufacturers to modify equipment that is manufactured to produce the kind of work he does. And he suggests changes to methods and changes to instrumentation to improve that." S1 stated that MT "acts as a consultant, hematology and hemostasis, for others, including other military and government organizations and the civilian scientific community." Furthermore, S1 stated that MT's research deals with "more advanced type of things like genetic screening and development of new heparin nomograms which are used to treat patients. And some of his procedures have been adopted into the clinical setting to better manage patients."
The record reflects that MT has co-authored over 250 journal entries, book chapters, abstracts and patients and made over 150 presentations at international, national, state and local meetings.
The AJ noted that S1 stated that MT2 is a research chemist and "conducts research in support of GME and conducts his own research. The position requires a Ph.D." The AJ further noted that MT2 "conducted research and develop methods, but he was a theoretical scientist whose work was much more analytical, while Complainant applied existing standards." S1 stated that MT2's "particular" specialty is lipid chemistry and cardiac risk factors. S1 also stated that MT2 is a team leader of interdisciplinary studies.
The AJ noted that according to MT2, he is an international consultant and some of his research had resulted in changes in standard practices in the United States and around the world. The projects MT2 participate in during the relevant time included examining different chemical and biochemical compounds that related to cardiovascular disease. S1 stated that MT2 was working on a new antidote to cyanide poisoning and is working "on some projects now with the pediatric folks up at BAMC to look at chemicals that are related to childhood obesity and if there's a biochemical marker that can show which group of individuals would be more prone to that type of problem. But he looks and develops independent methods or new methods that may not exist. In his case, he has seven patents for things he's invented because of his expertise in the scientific community."
The AJ noted that during his testimony, S1 stated that Complainant's position "is a microbiology - - in my opinion, a basic microbiology position to perform microbiology analysis on protocols that are submitted to the division. [MT's] is at a graduate level scientifically advanced level of hematology and coagulation that is - - that I expect him to do a higher level of science, a more complex, more expanded level of science than I would expect from [Complainant]. And [MT2] I consider at a even higher level as a research professional chemist, that he would be more involved at a even a more extreme level of molecular science associated with protocol investigations."
S1 further testified that if MT2 were absent for an extended period of time, he would have to talk with civilian personnel "about taking actions to get somebody to replace him." S1 stated that if MT was absent, a technical support person could replace to perform routine testing but "there's no one else that does that job." S1 stated that if Complainant were to be absent for an extended period of time, "for the things that she does, there are three other individuals that can step in and cover her job."
Complainant's contended that her published works were of the same level and quality as those by MT and MT2. However, S1 stated that the level of research conducted, the scientific use of the articles and the reputation of the journals that published the articles were significantly higher for MT and MT2's articles than for Complainant's articles.
The AJ further noted in Complainant's attempt to counter management's claims that her work was not as complex or at the same scientific level of MT's, Complainant offered a journal article on which she was the lead author and which S1 admitted addressed a relatively complex subject. However, S1 stated that he knew the other author (A1) of the subject article. The AJ noted that according to S1, the subject article reflected the very work that A1 was involved in and was not something that Complainant was hired to do. S1 testified that Complainant "probably was very involved in running the samples. The scientific part of this procedure, the science behind this, was [A1's] specialist. If he was working with [Complainant] and [Complainant] was a co-investigator, or, as you say, in mentor/mentee relationship, [A1] was the prime scientist on this endeavor."
Furthermore, the AJ noted that both MT and MT2 were expected to bring in money - MT through working with companies, and MT2 through obtaining grants. The AJ also noted that MT and MT2 were the recipients of numerous awards.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her representative, argues that the AJ erred finding no discrimination. Complainant states that the hearing was conducted in two parts on 19 May 2010 and 11 June 2010. The Judge was not well during the hearing and many interruptions of the proceedings occurred as an apparent result." Complainant further states that it took approximately sixteen months before the AJ issued a final decision. Complainant argues that while S1 testified at length "but with little to no specificity, that [MT] and [MT2] function at a higher level, that they possess and apply a more sophisticated skill set and he implied that they use a more developed level of critical thinking and analytical reasoning." Complainant also argues that the AJ set objective evidence aside "in favor of the unsubstantiated testimony of [S1]. She made no overt observations regarding the credibility of any witnesses; however, when she cites the Complainant's testimony, the AJ writes, 'According to Complainant.' She did not cast similar aspersions on the [S1's] 'insistence' as evidence of truth."
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.
Complainant contends that the fact that she was paid less than MT or MT2 for equal work and responsibility under similar working conditions within the same establishment is a violation of the Equal Pay Act. The U.S. Supreme Court articulated the requirements for establishing a prima face 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, 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. 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 a Complainant has met the burden of establishing a prima facie case, an employer may avoid liability only if it can be 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 196-197; 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)).
Complainant contended she received less pay than MT and MT2 for doing equal work requiring the same skill effort and responsibility. However, substantial evidence of record supports the AJ's conclusion that the skill and effort required for Complainant's job was not the same as the skill and effort required for MT and MT2. Because Complainant did not perform the same duties as these two comparators (the only males identified by Complainant), we are not persuaded that she performed equal work under similar conditions when compared to MT and MT2, and therefore find that she failed to prove a violation of the Equal Pay Act.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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
May 7, 2012
__________________
Date
1 The record reflects that during the hearing, Complainant withdrew her Title VII claim. Therefore, we will only address Complainant's Equal Pay Act claim herein.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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