Genie S.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Mar 22, 2019

0120171456 (E.E.O.C. Mar. 22, 2019)

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

Genie S.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120171456

Hearing No. 570-2014-00012X

Agency No. HSCBP002062013

DECISION

On March 10, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
February 9, 2017, 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 (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 finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Assistant
Commissioner (AC), ES-0201-00, in the Office of Human Resources Management (HRM) at the
Agency’s headquarters in Washington, D.C.

On February 5, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of sex (female) when on September 16, 2012, she learned that she was
being paid less than her Senior Executive Service colleagues.

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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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 requested a hearing. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s October 14, 2014,
motion for a decision without a hearing and issued a decision without a hearing on January 11,
2017. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact 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. In
rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see
also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-
110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).

On appeal, Complainant contends that she received less pay for the same work as her male SES
colleagues in other program offices. Though Complainant acknowledges that the job descriptions
for Senior Executive Service (SES) positions at each of the Agency’s fourteen program offices are
different from her own position as the AC of HRM, she asserts that the job descriptions are
misleading because they do not reflect the “core tasks” required for each position. Complainant
asserts that the work performed by all of the Assistant Commissioners and Deputy Assistant
Commissioners at the Agency share “the same functional job requirements, duties, and
responsibility to both their component offices and to the Agency as a whole.” As such, she
contends that the AJ erred in finding that she did not perform the same work as her comparators.

First, we address Complainant’s contention that the Agency violated the EPA. 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.

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After careful review of the evidence of record, we find that Complainant failed to establish a prima
facie case of discrimination under the EPA. While we acknowledge Complainant’s contention that
she performed the same core tasks as all of the Assistant Commissioners and Deputy Assistant
Commissioners at the Agency, the record clearly shows that Complainant’s duties as an Assistant
Commissioner in the Office of Human Resources Management were clearly distinct and
substantially dissimilar to the primary job duties of her SES colleagues at other program offices.
We agree with the AJ that Complainant’s reliance on broad and overarching core tasks2, as
opposed to actual job duties, is insufficient to show that she performed the same work as her
comparators. For these reasons, we affirm the AJ’s finding of no discrimination with respect to
Complainant’s EPA claim.

As for her claim of disparate treatment discrimination under Title VII, in order to successfully
oppose a decision by summary judgment, a complainant must identify, with specificity, facts in
dispute either within the record or by producing further supporting evidence and must further
establish that such facts are material under applicable law. Such a dispute would indicate that a
hearing is necessary to produce evidence to support a finding that the agency was motivated by
discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even
construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable
fact-finder could not find in Complainant’s favor. We conclude that the AJ correctly determined
that the preponderance of the evidence did not establish that Complainant was discriminated
against by the Agency as alleged.

CONCLUSION

We AFFIRM the Agency’s finding of no discrimination.

2 As reflected in the investigative record, Complainant asserts that Assistant Commissioners at the
Agency perform the same work because they all: 1) serve under the broad administrative
supervision of the Commissioner and Deputy Commissioner; 2) function with extremely wide
latitude and exercise independent judgment in deciding courses of action; 3) keep the
Commissioner and Deputy Commissioner informed of significant events; 4) are evaluated in terms
of accomplishment of goals and objectives; 5) serve as key members of the CBP executive
management team; 6) participate fully at the highest level of the decision making process; 7) advise
DHS executives on issues concerning their program area; and 8) provide testimony to
Congressional committees.

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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 (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.
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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

March 22, 2019
Date