01965547
10-16-1998
Margaret F. McIntosh, Appellant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Margaret F. McIntosh v. Department of Commerce
01965547
October 16, 1998
Margaret F. McIntosh, )
Appellant, )
)
v. ) Appeal No. 01965547
) Agency No. 95-52-0241
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
________________________________)
DECISION
INTRODUCTION
Appellant timely appealed to the Equal Employment Opportunity Commission
(EEOC or "the Commission") from a final agency decision concerning her
allegations that the agency violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq., and the Equal Pay Act of
1963 ("EPA"), 29 U.S.C. �206(d). The appeal is accepted in accordance
with the provisions of EEOC 960, as amended.
ISSUE PRESENTED
1. Whether appellant demonstrated that the agency engaged in a pattern
or practice of discrimination between 1992 and 1995 that delayed and
eventually denied her request for reclassification from a GS-12 to a
GS-13.
2. Whether appellant demonstrated that she is now and has been
performing equal work for unequal pay in violation of the Equal Pay
Act.
BACKGROUND
Appellant, has been employed as a GS-12 Public Works Program Specialist
(PWPS) since 1985 with the agency's Atlanta Regional Office of the
Economic Development Administration. On March 30, 1995, appellant
filed a formal complaint alleging discrimination as stated above.
The agency accepted the complaint and conducted an investigation.
After the completion of the investigation, appellant was informed of her
right to request either an EEOC hearing with an administrative judge
or a final agency decision on the record. Appellant failed to submit
a request for a hearing within the 30-day time period. Therefore,
the agency issued a final decision pursuant to 29 C.F.R. �1614.110.
In its final decision dated July 16, 1996, the agency concluded that
appellant failed to prove sex discrimination and failed to prove that
the agency violated the Equal Pay Act of 1963.
Between March 1987, and October 1991, The Regional Directors from the
Philadelphia and Chicago Regional Offices circulated several draft
position descriptions (PD's) for a GS-13 PWPS. Each time the GS-13
PD was submitted to the Office of Personnel Operations (OPO), it was
returned without action because the Classification and Resources Division
determined that the duties as described did not support a GS-13.
A draft PD submitted to OPO in October 1991 by the Philadelphia Regional
Office was lost. In or about April 1992, it was resubmitted to the
Supervisory Personnel Management Specialist (Branch Chief) in OPO.
In June 1992, the Regional Director (RD) of the Atlanta Regional Office
(ATRO) submitted to his supervisor paperwork to establish a GS-13 PWPS
position. The ATRO RD provided a justification for his request, a draft
PD, a Position Evaluation Report and a Request for Personnel Action
(SF-52). The SF-52 was for a "recruit" action, which meant that the
position would be advertised. The position was approved in March 1993,
by the Acting Assistant Secretary. However, there is no indication that
the position was ever advertised or that any other action was taken.
On August 27, 1992, a subordinate Personnel Management Specialist
(PMS) to the OPO Branch Chief approved the paperwork to establish a
GS-13 position in the Philadelphia Regional Office, and the package
was sent to the Deputy Assistant Secretary (DAS). The processing of
the recruitment action was delayed because the DAS had reservations
about the need for the position. However, on February 8, 1993, the PMS
notified the Eastern Administrative Service Center (EASC) that it could
advertise the position. Thereafter, on April 4, 1993, a male GS-12,
PWPS in the Philadelphia Regional Office was selected for the position.
On May 21, 1993, the Chief Personnel Officer (CPO) at the Central
Administrative Service Center (CASC) requested that OPO approve GS-13
PWPS positions for Atlanta and Chicago, as it had for Philadelphia.
On July 30, 1993, OPO responded stating that the Philadelphia PD contained
numerous gaps and inconsistencies that made OPO unwilling to approve it
as the nationwide standard.
In January 1995, the agency issued new guidelines on delegations
of authority. Under the new guidelines, regional office heads were
empowered to approve or delegate approval of personnel actions that
previously required clearance by OPO or other units of the Office of
Human Resources Management. Among these personnel actions were:
Authority to redelegate classification decision making to any supervisory
or managerial level for those positions covered in the PD library,
the Department's automated position description repository; and
Authority, without central or counterpart clearance, to:
Take position classification actions and personnel placement actions in
administrative management areas without grade-level restriction....
As of March 29, 1995, the agency had agreed to advertise GS-13 positions
in Atlanta and Chicago, but had not finalized the arrangements. The
record also contains an unsigned memorandum from the ATRO Directory to
the DAS requesting permission to promote appellant by accretion of duties.
As of December 26, 1995, there was no action on either request.
ANALYSIS AND FINDINGS
The Equal Pay Act was enacted to remedy the problem of sex-based wage
discrimination. Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974).
It stands for the straightforward proposition that "employees doing
equal work should be paid equal wages, regardless of sex." Goodrich
v. International Brotherhood, of Electrical Workers, 815 F.2d 1519,
1523 (D.C. Cir. 1987) citing H.R. Rep. No.309, 88th Cong., 1st Sess. 2
(1963), U.S. Code Cong. & Admin. News 1963, pp. 687,688.
The EPA mandates that an employer not discriminate "within any
establishment in which such employees are employed, between employees
on the basis of sex by paying wages to employees in such establishment
at a rate less than the rate at which he pays wages to employees of the
opposite sex in such establishment for equal work on jobs the performance
of which requires equal skill, effort, and responsibility, and which
are performed under similar working conditions...." 29 U.S.C. 206(d)(1).
The United States Supreme Court articulated the requirements for
establishing a prima facie case of discrimination under the EPA in Corning
Glass Works, 417 U.S. at 195. 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. Id.; Morgado v. Birmingham
- Jefferson County Civil Defense Corps, 706 F.2d 1184, 1187-88 (11th
Cir. 1983), cert. denied, 464 U.S. 1045 (1984); Thompson v. Sawyer,
678 F.2d 257, 270-271 (D.C. Cir. 1982). The Complainant need not show a
discriminatory intent to establish a prima facie violation of the EPA.
Brewster v. Barnes, 788 F.2d 985, 993, n. 13 (4th Cir. 1986); Maxwell v.
City of Tucson, 803 F.2d 444, 446 (9th Cir. 1986); Patkus v. Sangamon -
Cass Consortium, 769 F. 2d 1251, 1260, n. 5 (7th Cir. 1985); Sinclair v.
Automobile Club of Oklahoma, Inc., 733 F. 2d 726, 729 (10th Cir. 1984).
The requirement of "equal work" does not mean that the jobs must be
identical, but only that they must be "substantially equal." Corning
Glass Works, 417 U.S. at 203, n. 24; Horner v. Mary Institute, 613 F.2d
706, 714 (8th Cir. 1980); Laffey v. Northwest Airlines, Inc., 567 F.2d
429, 449 (D.C. Cir. 1976); Hodgson v. Golden Isles Convalescent Homes,
Inc., 468 F.2d 1256, 1258 (5th Cir. 1972).
The factors of skill, effort, and responsibility used to measure the
equality of jobs are not precisely definable. 29 C.F.R. �1620.14(a).
Skill includes things such as "experience, training, education, and
ability." 29 C.F.R. �1620.15. Effort addresses "the amount of physical
or mental exertion required to perform the job." 20 C.F.R. �1620.17.
However, 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). Although insubstantial or
minor differences do not render the equal pay standard inapplicable,
"substantial differences, such as those customarily associated with
differences in wage levels when the jobs are performed by persons of one
sex only, will demonstrate an inequality as between the jobs justifying
differences in pay." Id.
Once a prima facie case is established under the EPA, an employer may
avoid liability only if it can prove that the pay difference is justified
under one of the four affirmative defenses set forth in the EPA, namely:
(1) a seniority system; (2) a merit system; (3) a system which measures
earnings by quantity or quality of production of work (also referred
to as an incentive or piecework system); or (4) a differential based
on any other factor other than sex. 29 U.S.C. 206(d)(1); and, Corning
Glass Works, 417 U.S. at 196-97. The equal pay standard is applicable
to jobs based on the actual job requirements and performance, not job
classifications of titles. "Job titles are frequently of such a general
nature as to provide very little guidance in determining the application
of the equal pay standard." 29 C.F.R. �1620.13(e).
Where the jurisdictional prerequisites of both the EPA and Title VII
are satisfied, any violation of the EPA is also a violation of Title
VII. 29 C.F.R. �1620.27(a). Where there is evidence that an employer
has engaged in a pattern of conduct that treats members of a protected
class differently from others, it may be found to have engaged in a
pattern-or-practice of unlawful discrimination. See, e.g., Hazelwood
School District v. United States, 433 U.S. 299, 303 (1977); Teamsters
v. United States, 431 U.S. 324, 335 (1977). Proof of isolated acts of
discrimination is however, insufficient to establish a prima facie case
of a pattern-or-practice of unlawful discrimination.
Applying the above legal principles, we find that appellant failed to
prove a prima facie violation of either the EPA or Title VII.
We first note that the agency concedes, for EPA purposes, that it
constituted a "single establishment." Therefore, the Commission finds
no need to further discuss this element.
I. Equal Pay Violation
As we stated above, the EPA requires a complainant to satisfy each of the
tests, namely, skill, effort, and responsibility, when comparing her own
actual duties with those of the higher paid male comparator. There is no
question here that the core duties of the GS-12 and GS-13 are virtually
identical. However, the record shows that unlike appellant the Comparator
GS-13 performed supervisory duties. We hold that supervisory duties are
a substantial difference which would customarily warrant a difference
in wage levels. Therefore, we agree with the agency's conclusion that
the compared positions are not equal in the scope of responsibility.
Thus, appellant cannot establish a prima facie violation of the EPA.
II. Title VII
In order to make a prima facie case of discrimination under Title VII
appellant must show that she is a member of a protected class and that
she received treatment different from that accorded similarly situated
person(s) who are not members of her class. We hold in support of the
agency that appellant failed to establish a prima facie case of disparate
treatment because she never applied for the Philadelphia GS-13 position.
In addition, we find that appellant does not establish a prima facie case
because she has not shown that she was ever denied the reclassification to
a GS-13 position. The record shows that the Atlanta Regional Management
supported the creation of the GS-13 position in Atlanta and appellant's
bid for a promotion. However, as stated by the agency the regional
management could not take any action without approval from the agency's
headquarters.
Assuming, arguendo, even if appellant had established a prima facie case
of discrimination, the agency articulated a legitimate, nondiscriminatory
reason for its failure to reclassify appellant's position as a GS-13.
The PMS testified that intermittently she advised the Philadelphia
Regional Office on how to develop a Senior PWPS position that would
support a GS-13. She recalled that other regional offices were also
trying to establish GS-13 positions and approached OPO as a "united
front." The PMS speculated that Philadelphia may have had a greater
workload or that it was simply more persistent than the other regional
offices. The PMS and HRM of CASC testified that the Philadelphia
position had been approved in error and that the Department did not want
to perpetuate the error by approving GS-13's in Atlanta and Chicago.
The Personnel Officer at OPO testified that the employee (Responsible
Official, RO) identified as being directly responsible for approving
the Philadelphia Regional Office Senior PWPS, GS-13 position is no longer
with the Department and OPO has been unable to locate any documentation
of the action. According to OPO management the RO lacked the authority to
approve the classification, and the Philadelphia request should have been
routed through the RO to the Personnel Officer at OPO. The Personnel
Officer added that he did not share the view that the Philadelphia
position was misclassified.
As the agency appropriately stated, it is apparent that the erroneous
approval of the Philadelphia position to GS-13 granted the employees in
Philadelphia an opportunity not afforded to employees in other regions.
However, the error was nondiscriminatory. Appellant does not challenge
the selection process which took place for the Philadelphia position and
there is no evidence that the selection was gender biased. We further
find that there is no evidence that the agency's classification policies
or practices had an adverse impact on female GS-12s. On the contrary, the
agency credibly presented testimony that the approval of the Philadelphia
position was unfair and further acknowledged that without the GS-13
position, the career development of all PWPS's were blocked since the next
grade level is the GS-14 Division Chief position, for which the GS-12's
cannot compete because they lacked time in grade. It is apparent that the
agency has a problem requiring management attention. However, there is
no persuasive evidence showing that the GS-12 reclassification problem
constituted unlawful sex discrimination.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision and find that appellant has failed to
prove, by a preponderance of the evidence, that she was discriminated
against as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. If you file a civil action,
YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE
OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS
OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may result in
the dismissal of your case in court. "Agency" or "department" means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
Oct 16, 1998
DATE Frances M. Hart
Executive Officer
Executive Secretariat