0520170506
12-12-2017
Emil Z,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Emil Z,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Request No. 0520170506
Appeal No. 0120151106
Agency No. 2014-25653-FAA-05
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120151106 (June 20, 2017). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. � 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
In EEOC Appeal No. 0120151106, we dismissed Complainant's appeal as untimely filed. The decision determined that Complainant received the Agency's final decision on December 21, 2014. Complainant's appeal was received by the Commission on January 26, 2015, in an envelope with an illegible postmark. The Commission held that the appeal was filed one day beyond the 30-day time limit excluding the five-day extension pursuant to 29 C.F.R. � 1614.604(b). The Commission noted that Complainant provided no justification for the waiver or tolling for the filing period for his appeal. As such, the appeal was dismissed.
On request for reconsideration, Complainant contends that the Commission's decision was incorrect in its application of the five-day extension for the presumption of receipt. Complainant asserted that the 30-day deadline plus the five-day presumption fell on Sunday, January 25, 2015. Therefore, to be considered filed in a timely manner, it needed to be received on the next business day which was Monday, January 26, 2015. Therefore, Complainant argued that his appeal was filed in a timely manner.
Upon review of the record, we find that Complainant correctly showed that his appeal was improperly dismissed as untimely. The record showed that Complainant received the Agency's final decision on December 21, 2014. The final Agency decision stated that Complainant must file is appeal by mail to the Commission within five calendars days of the expiration of the filing period to be considered time. The fifth day following the expiration of the filing period fell on January 25, 2015, which was a Sunday, requiring the extension of the applicable filing period to the next business day, or Monday, January 26, 2015. See 29 C.F.R. � 1614.604(d); see also Baxley v. U.S. Postal Serv., EEOC Appeal No. 01A21944 (June 7, 2002) (extending the filing period to the next business day for the filing of a formal complaint). As such, we find that the previous decision improperly dismissed his appeal. Therefore, after reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to grant the request.
Because we are reopening our previous decision, we will now consider the merits of the underlying case, as well as arguments the parties originally submitted on appeal below.
BACKGROUND
During the relevant time, Complainant was employed as a Human Resources Specialist (Labor/Employee Relations Specialist, or L/ER Specialist), FG-0201-I, in the Southwest Region Labor and Employee Relations Division, Regional Human Resources Central Service Area, in Fort Worth, Texas.
Complainant filed his formal complaint on May 20, 2014, alleging he was subjected to discrimination on the basis of sex (male) when, on March 18, 2014, he learned that, on a continuing basis, he was paid substantially less than similarly situated coworkers.
The Agency accepted the complaint for investigation. Following the investigation, the Agency forwarded the report of investigation to Complainant and provided him with the opportunity to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (EEOC AJ) or an immediate final decision by the Agency. On November 6, 2014, Complainant requested an immediate final decision. As such, the Agency issued its final decision, pursuant to 29 C.F.R. � 1614.110(b), concluding Complainant failed to prove a violation of Title VII or the EPA.
During the investigation, Complainant asserted that there were female employees in his work unit who performed substantially equal work, but were paid more. Specifically, Complainant compared himself to two L/ER Specialists - Comparator 1 (female), who was hired by the Agency on August 28, 2011, and Comparator 2 (female), who was hired in late December 2012 or early January 2013. Complainant also asserted that there was a clear historic pattern of males receiving lower pay than females in the L/ER section.
The record shows that Complainant has been in his position since September 10, 2010, and that he has been working as an L/ER Specialist for four years and was a L/ER Assistant for a year prior. He has a Bachelor's Degree in Management and a Master's Degree in Public Administration; completed a 40-hour basic mediation course through the Federal Mediation and Conciliation Service; and received arbitration training through the National Arbitrators Association. He has also received additional training through the Agency in L/ER, Federal Family Law, and the eLearning Management System.
In response to Complainant's claim, the Manager noted that he handles staffing for approximately 213 employees. She acknowledged that he performs multiple and complex assignments, but stated that his work only affects one Line of Business and internal customers. The Manager noted that Complainant was hired in 2009 on a temporary appointment not to exceed two years. At that time, he was hired at the E-Band when he was still working on his degree and was an HR Assistant. In 2010, Complainant was permanently hired at the F-Band in an HR Specialist position. Complainant was promoted to the G-Band in 2011 and the H-Band in 2012. In December 2013, during Agency furloughs and restricted promotions, the Manager requested that Complainant be promoted to the I-Band, which he received on March 9, 2014, following the lifting of the restrictions on promotions.
The Manager noted that Comparators 1 and 2 were in the I-Band for much longer than Complainant. Comparator 1 had 20 years of experience at the GS-12 equivalent, which is comparable to the H-Band prior to converting to the I-Band in 2011. Comparator 1 had also previously worked for the Agency, but was separated following a Reduction-in-Force. For six years, Comparator 1 worked for a contractor with the Agency performing the same duties at a higher salary. She returned to the Agency and hired at the I-Band because of her experience in the interim. In addition, the Manager noted that Comparator 1 has 33 years of federal service, where she has worked as an Air Traffic Control Specialist, bringing years of experience to her work as a union advocate and experience in labor from the union perspective. Finally, the Manager indicated that Comparator 1 provides guidance and services to more than 700 employees in two large Air Traffic Control facilities; was responsible for pointing employees to EAP services and setting up training classes; and served as the primary agent for the Agency's Voluntary Leave Transfer Program for five state areas in the Southwest Region.
Regarding Comparator 2, the Manager stated she had been an I-Band L/ER Specialist with the United States Postal Service for six years prior to coming to the Agency. She was a lateral transfer from another federal agency and had been performing as an I-Band employee at the Full Performance Level for years and had more than 23 years of federal experience. The Manager noted Comparator 2 had exceptional skills in negotiations and extensive experience from the Postal Service involving hundreds of grievances, third party arbitrations, unemployment hearings and alternative dispute resolutions. At the Agency, Comparator 2 was assigned an entire Line of Business with approximately 475 employees, a portion of another Line of Business with 186 employees and three Collective Bargaining Agreements (CBA).
The Manager also noted that in the work unit, there were four male and four female L/ER Specialists and the highest paid employee was a male who has been with the federal government since 1990 and 13 years of service specific to L/ER. Another male employee was the second-highest paid employee and his duties were more comparable to Comparator 2. The Manager concluded that the difference in pay were based on the results of Comparator 1 and 2 having received yearly or bi-yearly pay increases over 20 and 30 years, resulting in their current cumulative salary and not sex.
Based on this evidence, the Agency determined Complainant failed to establish a prima facie case of discrimination in violation of the EPA. The Agency noted that Complainant, Comparator 1 and Comparator 2 each had different responsibilities: Complainant was responsible for 213 employees and two CBAs; Comparator 1 was responsible for more than 700 employees and closely supervised the EAP program; and Comparator 2 was responsible for over 661 employees and three CBAs. The Agency also held that Complainant failed to demonstrate that the disparity in salary was due to sex, finding that it was unreasonable for an employee to expect that he is entitled to the same salary as someone with a greater amount of experience as compared to his own experience. The Agency then turned to the overall difference in federal experience between Complainant, Comparator 1 and Comparator 2. The Agency found that this factor sets Complainant apart from Comparator 1 and 2 and that Complainant is in a different stage of his career because he was just promoted to the I-Band in 2014. It is for this reason alone that the Complainant's salary differs than that of Comparator 1 or Comparator 2. As such, the Agency concluded that Complainant failed to establish a prima facie case of an EPA violation. Assuming Complainant established his case, the Agency held that it had articulated its affirmative defense showing that the disparity in pay was due to a seniority system and Complainant did not offer any evidence to rebut the Agency's defense.
The Agency's final decision analyzed Complainant's claim of disparate treatment on the basis of sex in violation of Title VII. The Agency held that the Manager provided legitimate, nondiscriminatory reasons for the disparity in pay for which Complainant failed to show was pretext for discrimination. Therefore, the Agency issued its final decision finding no violation of Title VII and EPA.
Complainant appealed the Agency's final decision asserting that he had been subjected to discrimination based on his sex with respect to his wages. Complainant asserted that he had more Air Traffic Managers and Front Line Managers to deal with than Comparator 1 or 2. Complainant claimed that the Agency failed to address the amount of work associated with the Managers and new Managers he had to deal with in his line of business. He indicated that he constantly struggled with appropriately applying Agency policies and the correct provisions of the Collective Bargaining Agreement. As such, he created an enormous amount of advice and guidance that he provided to Agency managers on a daily basis. Complainant also claimed that he had more cases under profile than either Comparator 1 or 2 which does not factor in the amount of complexity of the actions. Complainant further asserted that he is not adequately compensated by the Agency on "quality or quantity of production" as alleged by the Agency. Complainant also challenged the Agency assertion that Comparator 1 with 33 years of government experience and 20 years at the equivalent H-Band level had more seniority, as he had been in the same pay system since 2009. As for Comparator 2, the Agency indicated that she worked for over 23 years with another Agency. However, Complainant argued that Comparator 2 was hired at the Agency with a $20,000 pay increase from the previous Agency. Therefore, Complainant claimed that the Agency provided flexibilities in order to pay Comparator 1 and Comparator 2 with a base salary around $100,000 which were not afforded to him. In sum, Complainant asked that the Commission to reject the Agency's final decision finding no violation of Title VII and the EPA.
ANALYSIS AND FINDINGS
As this is an appeal from a 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. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
First, we address Complainant's contention that the Agency violated the EPA. 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. Equal Employ. Opp. Comm., EEOC Appeal No. 01A02919 (Sept. 12, 2000), req. for reconsideration denied, EEOC Request No. 05A10076 (Aug. 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.
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 accountability required in the performance of the job, with emphasis on the importance of the job obligation." 29 C.F.R. � 1620.17(a).
Assuming Complainant established his prima facie case of sex discrimination in violation of the EPA, upon review, we find that the difference in pay was justified by a factor other than sex. The Agency clearly demonstrated that Comparator 1 and Comparator 2 had 35 and 22 years of federal experience and entered the Agency at a higher pay grade based on their seniority and prior pay experience. In contrast, Complainant entered the Agency at the E-Band level in 2009 and worked his way from a temporary two-year position to his current E/LR Specialist position. Accordingly, Complainant has not established that he was discriminated against under the EPA.
Next, we address Complainant's claims that he was subjected to disparate treatment. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
In the present case, the Agency articulated legitimate, nondiscriminatory reasons for the pay disparity as noted above and provided in the Manager's affidavit. Complainant failed to establish that the Agency's reasons constituted pretext for sex-based discrimination. Therefore, we conclude that Complainant has not established that he was subjected to discrimination in violation of Title VII.
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. 1614.405(c), and it is the decision of the Commission to GRANT the request. We VACATE our previous decision and AFFIRM the Agency's final decision finding of no discrimination. Because the propriety of the Agency's final decision is being addressed on its merits for the first time, the parties will be given reconsideration rights.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (R0610)
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 (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 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
December 12, 2017
__________________
Date
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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