Herman F., Complainant,v.Elaine C. Duke, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.Download PDFEqual Employment Opportunity CommissionOct 19, 20170120150832 (E.E.O.C. Oct. 19, 2017) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herman F., Complainant, v. Elaine C. Duke, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 0120150832 Agency No. HS-ICE-02163-2013 DECISION On December 18, 2014, 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 November 19, 2014, final decision concerning his 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Deputy Assistant Director (DAD)/Supervisory Contract Specialist, GS-1102-14, in the Agency’s Office of Acquisition Management (OAM) in Dallas, Texas.2 On November 18, 2012, Complainant and four other DADs in Dallas wrote a memorandum to the Director regarding pay inequality.3 The memorandum argued that the DADs in Dallas have 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. 2 The Office of Acquisition Management is identified as both OAQ and OAM in the record. 0120150832 2 the same level of responsibility, perform the same duties, and are held to the same performance work standards as the DADs in Washington, D.C. and Laguna Nigel, California. However, the DADs in Washington, D.C. and Laguna Nigel are paid at the GS-15 level, while the DADs in Dallas are paid at the GS-14 level. The five employees requested their DAD positions in Dallas be elevated to the GS-15 level. On November 30 and December 14, 2012, the Director responded to Complainant and the other DADs in Dallas via email wherein he addressed their memorandum. The Director stated that the grade structure in Dallas was the “desired” appropriate grade structure OAQ wide; but for various “historical/legacy reasons,” the structure in OAQ Washington, D.C. mirrors the generally elevated structure in the greater Washington, D.C. metro area. The Director stated he would undertake an initiative to restructure the regional contract offices in order to address the grade and pay imbalance. Thereafter, Complainant submitted a request for a desk audit to determine whether he should be classified at the GS-15 level. Complainant and his first level supervisor (S1), the Assistant Director, GS-15, completed a questionnaire for the desk audit. In her questionnaire, S1 stated that the duties and responsibilities of Complainant who is a GS-14 DAD in OAQ Dallas are synonymous with the duties and responsibilities performed by the DADs in OAQ Washington, D.C. and OAQ Laguna Nigel, California. S1 stated that Complainant performed under the same Performance Work Plan as the GS-15 DADs in Washington, D.C. and Laguna Nigel, California. S1 stated that the roles and responsibilities of the DADs/Supervisory Contract Specialists contain no differentiation between the GS-14 and GS-15 levels. S1 recommended that Complainant be made a GS-1102-15 Supervisory Contract Specialist. On June 5, 2013, the Chief, Classification Branch, Office of Human Capital (CBOHC), issued a memorandum and report to the Chief of Staff, OAM, wherein the Chief, CBOHC concluded that Complainant and the other four DADs in the Dallas office were at the proper grade for the work they performed. On July 5, 2013, Complainant filed an appeal of the CBOHC desk audit with the Agency’s Human Capital Operations Appeal Office (Operations Appeals). On December 26, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (White), sex (male), age (over 40), and in reprisal for prior protected EEO activity when beginning in November 18, 2012 and continuing, management: 1. Threatened and intimidated Complainant regarding his request for pay equal to other Deputy Assistant Directors (DADs) located in other Agency offices. 3 Complainant and three of the DADs who wrote the memorandum were male. One of the DADs was female. 0120150832 3 2. Failed to provide Complainant with equal pay/compensation for his duties (i.e. GS-15 pay).4 3. Failed to provide Complainant a fair and reasonable desk audit of his duties. 4. Failed to comply with regulatory timelines, including failure to forward Complainant’s appeal to the Office of Personnel Management (OPM) for final decision. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. In its final decision, the Agency determined it articulated legitimate, nondiscriminatory reasons for claims (2), (3), and (4). Regarding claim (2), the Agency stated the Director denied that he failed to provide Complainant equal compensation for his duties. The Agency noted the Director explained that he responded to Complainant’s November 18, 2012 memorandum by assessing the factors that created the apparent pay imbalance among the offices and that he decided to maintain the current structure of the Dallas, Washington, D.C., and Laguna offices. The Agency stated the Director supported his decision by explaining that although all DADs in OAM did similar work, the DADs in Dallas had smaller degrees of responsibility and lower levels of procurement execution than the DADs in Washington and Laguna. The Agency noted the Director stated his approach to the apparent pay and grade disparity would be to have each OAM office reflect the actual degree and difficulty of responsibility of that office, so that the grade and pay of the DADs would fit with the work of each office. Regarding claim (3), the Agency noted the Human Resources (HR) Classification Specialist stated that she had responsibility for OAM, and she stated she provided a fair and reasonable desk audit of Complainant’s duties. She concluded that Complainant held the correct grade for his work. The HR Classification Specialist stated during the desk audit she used the description of Complainant’s position, a description for the GS-15 position, the position evaluation submitted by Complainant and S1, and the Performance Work Plans for GS-14s and GS-15s. The HR Classification Specialist stated that she audited Complainant’s work and the work of the other four DADs in the Dallas office, and she did not perform an analysis of all OAM DADs nationwide because only the Dallas DADs requested a desk audit. Regarding claim (4), the Agency noted a Lead HR Specialist denied that he failed to comply with the regulatory timeframe, including failure to forward Complainant’s appeal to OPM for final decision. The Lead HR Specialist explained that he had not forwarded Complainant’s appeal of the desk audit to OPM because Complainant did not request the Operations Appeals 4 The other DADs in Dallas (three male and one female) also filed EEO complaints alleging equal pay discrimination. Their appeals are currently pending before the Commission under EEOC Appeal Nos. 0120150956, 0120150958, 0120150959, 0120150960. 0120150832 4 forward his appeal to OPM. The Lead HR Specialist also explained that he was unable to work on Complainant’s appeal because Agency leadership and the Office of Human Capital tasked him to give priority to other matters. He added that the 60-day time limit for appeals applied to requests to forward appeals to OPM but did not mean that Operations Appeals had 60 days in which to decide an appeal. He stated there was no deadline by which Operations Appeals had to decide an appeal. The Agency determined Complainant failed to prove by a preponderance of evidence that its articulated legitimate, nondiscriminatory reasons were a pretext for discrimination. The Agency also stated that prohibited discriminatory factors did not motivate management’s actions. Regarding Complainant’s Equal Pay Act claim, the Agency found Complainant did not establish a prima facie case because he did not show that the Agency paid different wages to employees of the opposite sex for equal work on jobs which required equal skill, effort, and responsibility, and which was performed under similar working conditions. The Agency found Complainant failed to make this showing because his female DAD coworker in the Dallas office performed the same work as him, under the same conditions as he, and she was at the same grade, GS-14, as Complainant. Moreover, the Agency noted the Director clarified that the grade and pay of the DADs in the Dallas office differed from the pay and grade of the DADs in the Washington, D.C. and Laguna offices because the Dallas office performed less work and work which was less demanding than the work performed by the Washington, D.C. and Laguna offices. Thus, the Agency stated it met its burden to show that the pay differential was based on a factor other than sex. Regarding Complainant’s hostile work environment claim, the Agency found the record did not support Complainant’s claim. In response to claims (2), (3), and (4), the Agency noted that management explained their actions were in accordance with management considerations and procedures. In addressing claim (1), the Director denied that he intended to threaten and intimidate Complainant regarding his request for pay equal to DADs in other offices. The Director explained that in his responses to the complaints of pay inequality, he intended to explain his approach to solving an apparent inequality that he saw was caused by an imbalance in OAM’s organizational structure. The Director clarified that he could not increase the Dallas DADs pay level, but he could reduce the office’s workload to better reflect their pay grade and the actual complexity of the work the Dallas office handled. He added that OAM did not reduce the workload of the Dallas office. The Agency found no evidence to show that management subjected Complainant to a hostile work environment. On appeal, Complainant claims he performed a job requiring equal skill, effort, responsibility, and working conditions as his peers in DC and Laguna. Complainant notes that his first level supervisor stated that he has been responsible for GS-15 work, is held to the same performance standards, and should be paid the same level as DADs in the Washington, D.C. and Laguna offices. Complainant argues that based on the record and the identified statements, comments, charts, and statistics cited, he has established a prima facie case for a violation of the Equal Pay Act and race, sex, age, and reprisal discrimination. Complainant also reiterated his arguments 0120150832 5 for his claim of discrimination and retaliation regarding his desk audit and his hostile work environment claim. In response to Complainant’s appeal, the Agency notes Complainant failed to establish a prima facie case of discrimination regarding his classification claims. Regarding his claims under Title VII and the ADEA, the Agency notes that Complainant admits that the DADs in Dallas, Texas perform similar duties and responsibilities and were treated in a similar manner with respect to the desk audit. The Agency notes Complainant has a female DAD coworker in the Dallas office performing the same work as he, under the same conditions, and at the same GS-14 grade. Thus, the Agency states that Complainant failed to show that he was treated differently based on his membership in this protected group. Similarly, the Agency states Complainant has a coworker whose race is African-American and not the same as Complainant’s race. The Agency states this DAD coworker is in the Dallas office and performs the same work as Complainant, under the same conditions, and at the same GS-14 grade. The Agency notes that the DADs in Washington and Laguna against whom Complainant is comparing himself include many within his protected groups. The Agency states that seven of the GS-15 grade level DADs in Washington, D.C. are male; at least five of them identify their race as White; and seven of them are older than Complainant. Thus, the Agency argues Complainant failed to establish a prima facie case with respect to his claims that the classification of his position at the GS-14 level is due to discrimination. The Agency also states that Complainant failed to establish a prima facie case with respect to his claims of discrimination and retaliation due to the desk audit review findings. The Agency notes that Complainant admitted that he and his DAD coworkers in Dallas received a group finding with respect to the desk audit review of their positions. Thus, the Agency points out that Complainant had coworkers outside of his protected group who were treated in a similar manner. The Agency reiterates its position that Complainant failed to establish a prima facie case of discrimination under the Equal Pay Act because his female DAD coworker in the Dallas office performed the same work as he, under the same conditions, and was at the same pay grade. The Agency states that assuming arguendo that Complainant established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions with respect to all claims. The Agency concludes Complainant failed to show that the Agency’s legitimate, nondiscriminatory reasons are a pretext for discrimination. The Agency also finds Complainant failed to prove by a preponderance of evidence that he was subjected to a hostile work environment. 0120150832 6 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”). At the outset, we note Complainant does not challenge the Agency’s definition of his complaint. Moreover, we find the record in the present case was adequately developed. 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. 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. 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). Upon review, we find that the difference in pay was justified by a factor other than sex. Specifically, we note that the Director explained that when the Agency was created in 2003, over 0120150832 7 2,000 contracting jobs which had not previously existed suddenly needed to be filled.5 He noted that in the metro Washington, D.C. area, the Agency would have had to compete with every other contracting Agency in the area to fill those positions. The Director explained this meant competing with other Agency components, other civilian federal agencies, the Department of Defense, and private contracting agencies for a small pool of contracting talent. The Director noted this was during a period when budgets and appropriations were tight, which meant that the only way to attract talent was to fill the positions at higher grades. The Director stated this type of competition did not exist in Dallas; therefore, it would not have been necessary to elevate the grade structure to entice individuals into the Dallas positions. Additionally, the Director noted that the Laguna DAD position operates independently without an onsite Assistant Director (a GS-15 position) unlike the Dallas office which would justify the reason the Laguna DAD position was graded at the GS-15 level. We note Complainant does not dispute the Director’s statement regarding the need to hire DADs at a higher level when the Agency was created. In addition, we find there is no evidence to suggest that the Agency’s initial determination to hire employees in Washington, D.C. at a higher-grade level, was based on anything other than appropriate classification standards. Thus, as a DAD in Dallas, Complainant was paid at the GS- 14 level while DADs in Washington, D.C. and Laguna Nigel, California were paid at the GS-15 level. 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). 5 We note that in addition to the affidavit provided in the present case, the Director provided four other affidavits responding to the claim that the DADs in the Dallas office were denied equal pay. We take judicial notice of the affidavits provided in the four other cases which are presently on appeal to the Commission as noted earlier in this decision. 0120150832 8 In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding Complainant’s claim of pay disparity, we note that the Director explained that positions in the Washington, D.C. area were initially filled at a higher grade due to the fact that there were a large number of positions to be filled with a small pool of contracting talent and that the Agency decided the only way to attract talent was to fill the positions at higher grades. Additionally, regarding Complainant’s claim that he did not receive a fair desk audit, the Agency states it conducted an appropriate desk audit of Complainant’s duties and considered all relevant information in reaching its determination that Complainant was placed at the appropriate grade level. Regarding Complainant’s claims that the Agency did not interview all of the appropriate parties, we note that the HR Classification Specialist explained that she did not perform an analysis of all OAQ DADs nationwide because only the Dallas DADs requested a desk audit. Regarding Complainant’s claim that the Agency failed to comply with regulatory timeframes regarding his appeal of the desk audit, the Lead HR Specialist denied that he failed to comply with the regulatory timelines, including failure to forward Complainant’s appeal of his desk audit to OPM for a final decision. The Lead HR Specialist noted that Complainant’s appeal was not forwarded to OPM because Complainant did not request an appeal by OPM but only requested an appeal by the Agency. The Lead HR Specialist explained that he was unable to work on Complainant’s appeal because he had been inundated with major projects. The Lead HR Specialist also stated that the 60-day time limit cited by Complainant is the time limit for the Agency to forward appeals to OPM; it does not set a time limit for the Agency to decide an appeal. Upon review, we find Complainant did not present any evidence that the Agency’s articulated reasons for its actions was a pretext for discrimination; nor does the record contain any other persuasive evidence that discriminatory animus played any role in the Agency’s actions. Finally, we address Complainant’s claim that he was subjected to a hostile work environment. In response to Complainant’s claim, the Director explained that that his response to the November 18, 2012 memorandum was intended to explain OAQ’s organizational structure and he hoped his assessment would “put the issue to bed” on its merits. Complainant claims that in a PowerPoint presentation the Director twice mentioned getting rid of “dead wood” which Complainant alleges is evidence of discrimination based on age. The record reveals that the July 2010 PowerPoint presentation was directed at all employees present at the time, not just Complainant. In his affidavit, the Director acknowledged “dead wood” is a term that he uses, but he stated that he did not use it to apply to anyone specifically. He explained that it is a term that means that management wants to ensure that everyone is contributing or given an opportunity to contribute. Further, we note Complainant has not shown any connection between the Director’s use of the term “dead wood” and the actions at issue in this case. Upon review, we find the alleged incidents were not sufficiently severe or pervasive to constitute harassment. Moreover, we find Complainant did not show that any of the actions were based on Complainant’s membership in a protected class or taken in reprisal for protected EEO activity. 0120150832 9 CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 0120150832 10 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 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 October 19, 2017 Date Copy with citationCopy as parenthetical citation