Herman F., Complainant,v.Elaine C. Duke, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Oct 19, 2017

0120150832 (E.E.O.C. Oct. 19, 2017)

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.
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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.
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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.
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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
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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.

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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
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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.
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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.

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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.
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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