Matilda C.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Mar 22, 2019

0120171795 (E.E.O.C. Mar. 22, 2019)

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

Matilda C.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120171795

Agency No. FS201600020

DECISION

On April 24, 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
March 20, 2017, final decision 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., the Equal Pay Act of 1963 (EPA), as
amended, 29 U.S.C. § 206(d) et seq., and Title II of the Genetic Information Nondiscrimination
Act of 2008, 42 U.S.C. § 2000ff et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Human Resources
Assistant (HRA), GS-0203-7, Human Resources Region 5 (R5), Field Services Albuquerque
(FSA), of the Forest Service located in Vallejo, California. On December 14, 2015, Complainant
filed an EEO complaint alleging that the Agency discriminated against her on the bases of race
(not specified), sex (female), disability (association with son with autism), age (55), genetic
information (not specified), and reprisal (prior protected EEO activity) when: (1) on or about June

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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24, 2016, she was assigned to perform GS-0201-11 Classification Specialist duties, she continues
to train and assist these specialists, she continues to be denied promotions to the GS-0201-07/09/11
staffing and/or classification positions, and a pre-approved desk audit was cancelled; (2) on or
about June 15, 2016, her request to teleconference in during training was denied and she was not
recognized for her achievements as were other employees; (3) on or about June 2016, she was
issued a satisfactory mid-year performance review; (4) on January 13, 2016, she was advised that
she could no longer telework full-time and no more than 2 days per week; (5) since August 18,
2015, and continuing, her workload has increased, and she has been required to perform the
classification and staffing duties of a GS-0201-11, Human Resources (HR) Specialist, without a
commensurate raise in pay; (6) on August 12, 2015, she was denied a promotion to a GS-0203-08,
HR Assistant position, despite the results of a completed desk audit, due to her status as a
Potentially Affected Employee (PAE); (7) since 2014, she has not been provided an accurate or
updated position description for her GS-0203-07, HR Assistant position; and her PD does not
reflect the shift in "Generalist" duties; and (8) on several dates, she has been subjected to various
incidents of harassment, including but not limited to: (a) from April 2015 to August 2015, her
inquiry ticket regarding the status of her desk audit was ignored and then cancelled; (b) in August
2015, management delayed in updating her AgLearn training record; (c) from November 4, 2015
to April 26, 2016, she was not given a copy of her 2015 performance appraisal, and then was
provided an incomplete document; and (d) on June 15, 2016, her disability was discussed during
a training session, she was singled out and made an example of for her disability and she was type-
cast as indifferent to hugs.2

After 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 EEOC Administrative Judge.
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 her to discrimination as alleged.

2 The Agency dismissed the following claims: (A) in 2013, Complainant was designated as a PAE
and not placed in the Workforce Restructuring and Placement System; (B) in 2013 and 2014, she
was not selected for various opportunities for which she had applied, including, but not limited to,
GS-0201-07/09/11, HR Specialist positions; and (C) on or before August 3, 2015, her request for
lodging and travel per diem to attend a training session was denied. The Agency dismissed Claim
A, in accordance with 29 C.F.R. § 1614.107(n)(1) because it was alleged during the informal EEO
counseling of complaint number FS-2014-00049, in which a notice of the right to file a formal
complaint was issued on November 27, 2013. The Agency dismissed Claim B and C, in
accordance with 29 C.F.R. § 1614.107(a)(2) for untimely EEO contact. The record shows that
Complainant’s EEO contact took place on October 8, 2015. Upon review of the record we affirm
the Agency’s dismissal of these claims. We note that Complainant does not address these
dismissals on appeal, but rather addresses the merits of the Agency’s dismissal of non-selection
claims in Agency No. FS201700323, which occurred in 2016 and are not before us.

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FACTUAL BACKGROUND

On January 27, 2014, Complainant was notified that she was a PAE meaning that a vacant, funded
position had not been identified for her through the Pre-Workforce Restructuring and Placement
System (Pre-WRAPS) process. The restructure eliminated the HRS GS-0203-07 position and
established four HRS GS-0203-08 positions, which were to be filled through a competitive hiring
process. Complainant was encouraged to apply to the GS-0203-08 vacancy announcements.
Complainant was further advised that if she had not been permanently placed in a vacant, funded
position before March 9, 2014, a realignment action would be processed to move her existing
position into the new organizational structure on the R5’s Service Team. Complainant was told
that she would then either continue to be assigned to her current team or detailed to other work.
However, her current pay plan, series, grade, and duty location would remain unchanged.

Claims (1), (5) and (6): Assigned Higher-Level Duties, Desk Audit Canceled, Promotion

Complainant asserted that her first-line supervisor (S1) assigned half of the work assignments that
were assigned to a GS-11 Human Resources Specialist (HRS1) to Complainant. Complainant
noted that she felt that her third-line supervisor (S3) ordered S1 to assign her those duties.
Complainant stated that since February 2016, S1 has also assigned her additional workloads of
classification pre-consultation duties. Complainant maintained that she performed these additional
duties from February 2016 to the present. Complainant also claimed that she helped train multiple
team members who were detailed to the GS-0201-11 series or were newly-hired employees.
Complainant also stated that she has applied several times to the GS-02013 positions but has yet
to be selected. With respect to the claim that a pre-approved desk audit was cancelled,
Complainant indicated that management never provided her with the reason for the cancellation.

S3 asserted that she was not aware that Complainant was being assigned GS-11 duties because she
does not directly assign work to her. S3 also asserted that she was not aware that Complainant
was being asked to train employees, as she is an HRA, and her position does not train HR
Specialists (HRS). S3 also stated that Complainant recently applied for a GS-0201-07 position,
but she was not one of the final top three applicants sent forward for a recommendation. S1 stated
that Complainant was assigned entry-level HRS work that a GS-0203-07 should be able to
perform. S1 also stated that Complainant has never been asked to classify a job on her own. If
she was willing she may have been allowed to work with an HR Specialist that would show her

3 The GS-201 HRS position: (a) provides staffing and placement advisory services in all stages of
the recruitment process including guidance on merit system principles and prohibited personnel
practices; (b) conducts job analysis, creates crediting plans, prepares promotion and placement
announcements; (c) issues referral certificates; (d) effects the full range of personnel actions; (e)
verifies employment eligibility, qualifications, salary determinations and sets pay in accordance
with regulatory requirements and Forest Service policy; (f) ensures priority consideration
programs are appropriately utilized; and (g) reviews past recruitment practices and local labor
market conditions to advise on future staffing strategies utilizing such sources as Veteran's
Recruitment Act (VRA), reinstatement, and Schedule A appointment authorities.
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the steps to classify a job. This would only benefit her. S1 further stated that Complainant would
not be expected to perform that work independently nor would it become a regular recurring part
of her duties.

A Supervisory HR Specialist, GS-201-13 (SHRS1) affirmed that when he assumed the supervisory
position for the Classification Team (2014-May 2015), he knew from the 2013 restructure that his
team's Human Resource Assistants (i.e., the GS-203-07's) were designated as PAEs along with
one other employee who held a GS-201-12 position. SHRS1 asserted that as of the time of his
affidavit, those employees were the remaining PAEs on his team. SHRS1 also stated that the
HRAs became PAEs because the 2013 restructure eliminated the GS-203-7 positions and
established four GS-203-08 positions in their place.

SHRS1 further asserted that in early 2014, a request to fill the newly established GS-203-7/8
positions in the classification team was initiated and the PAEs were encouraged to apply for this
promotion opportunity. Upon receiving the certificates, Complainant and another PAE were not
included in the certificate for GS-203-7/8 positions. SHRS1 stated that the reason he was given
for the PAEs names not being on the certificate was that their resumes attached to their application
did not adequately demonstrate specialized experience at the requisite grade. SHRS1 stated after
conducting a review of their duties, it was clear that they were not performing duties at the GS-
203-7 level as they were simply performing data entry and filing of classification actions.

SHRS1 explained that he began a year-long training program, so Complainant and the other PAE
could begin performing minor classification actions as required in their position description.
SHRS1 also stated that after reporting his findings, that the previous leadership did not adequately
develop the employees, it was decided not to pursue filling any of the positions, so they could give
their employees more time to develop their skills and knowledge.

SHRS1 stated that in February 2015, his supervisor at the time (SHRS2) suggested pursuing an
accretion of duties promotion for the PAEs. Accordingly, SHRS1 initiated the request and
assigned HRS2 to conduct a desk audit. SHRS1 explained that due to delays in revisions on the
justification and changes of leadership with Human Resource Officers a new request was
submitted in August 2015. Shortly after that, SHRS1 stated that SHRS2 notified him that an
accretion of duties promotion could not be processed on the PAEs as they did not have a funded
position. SHRS1 also stated that sometime in September 2015, S3 advised SHRS2 and him that
the desk audit should have been conducted by the Albuquerque Service Team to ensure the
objectivity of the evaluation and that the request could be cancelled, which the Albuquerque
Service Team did.

SHRS1 understood Complainant’s perception that she believed she was performing higher-graded
duties as for many years she was performing far below of what was expected from a GS-203-7,
which is now rectified and at the same time it would help her to be more competitive in her
application for higher graded positions. SHRS1 stated that the assistance that she has provided to
new classifiers in the team has been to familiarize them on Forest Service processes in building
positions and in completing any other required forms that an assistant should provide to the
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specialists that they service. SHRS1 also asserted that the orientation and training in performing
actual classification duties remains with him or a designated full performance HR Specialist and
would never be left to an HR Assistant. SHRS1 further affirmed that he recently re-advertised the
two vacant GS-208-7/8 positions and hopes that Complainant revised her resume and applied for
those positions, so she could qualify for either a GS-7 or GS-8 position and no longer be a PAE.

Claim (2) – Teleconference Denied for Training and Not Recognized for Achievements

Complainant stated that she asked S1 several times for the phone numbers to call into a training
event, but she was never given one, and she feels her request was denied by S3, without providing
a basis. Complainant also asserted that she was never given any reason for not being recognized
for her achievements.

S3 stated that prior to their team training, employees were told that they were required to attend in
person. S3 asserted that Complainant informed S1 that she might not be able to attend the meeting
due to child care issues. S1 affirmed that in-person participation at the training event was
mandated and Complainant did not have a family emergency or medical reason for not attending,
so she was required to attend. S1 noted that there were several other employees who requested to
participate via teleconference, and their requests were all denied. SHRS2 asserted that
Complainant did not want to come to the training, but management had been emphasizing to the
entire staff that occasional travel is part of the job and one of the purposes of this meeting was
team-building.

With respect to awards, S1 stated that there were no achievements for Complainant to be
recognized for and he, as her supervisor, would have been the one to have recognized her. S1
further explained that Complainant could not have been recognized for something that was not
observed by management.

Claim (3) - Satisfactory Mid-Year Performance Review

Complainant complained that she was issued a “Satisfactory” mid-year evaluation, with which she
disagreed. Complainant noted that S1 provided her with favorable feedback, and she had no
indication as to the low rating she was going to receive. Moreover, Complainant asserted that she
expected to receive a higher rating due to the higher graded work she performed, and the assistance
she provided to HRS1.

S1 stated that during the mid-year review, Complainant was told specifically the rating she
deserved at that time, but Complainant had not been issued a final rating. SHRS2, stated that she
issued the mid-year evaluation to the Complainant and then turned it over to S1. SHRS2 explained
that there were no ratings given at the mid-year meeting, as it is only for a discussion on employee
performance.

Claim (4) – Telework Reduced

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On January 13, 2016, Complainant was told that she had to cut back her teleworking to two days
per week. S3 explained that she discovered a lot of employees were not reporting to work despite
a policy requiring employees to report to work two days a week. S3 stated that she sent a letter to
all employees reinforcing the policy and asking everyone to comply with the policy. S3 explained
that the letter gave everyone two weeks to adjust their schedules and return to the office. S3 further
asserted that prior to her tenure, it was almost impossible to know the employees who were on the
staff and there was no accountability. S1 and SHRS1 corroborated S3’s testimony and noted that
Complainant has not adjusted her work schedule to comply with S3’s letter. S1 stated that her
other subordinates have complied with S3’s request. An HR Specialist (HRS2) asserted that she
reduced her telework schedule because of S3’s request which applied to everyone, not just
Complainant.

Claim (7) - Since 2014 Complainant Has Not Been Provided Accurate or Updated PD

Complainant asserted that her PD is outdated, and she performs the same duties as a coworker who
is a GS-0203-08. She noted that while she has not been officially assigned generalist duties, her
supervisors have discussed shifting to generalist positions where classifications and staffing are
combined. Complainant contended that she is harmed by this because it takes away duties from
her and adds additional duties that were outside of her PD.

S1 asserted that no matter how many times he explained the PD to Complainant, she continued to
believe she was being assigned work outside of her PD. S1 continued that Complainant’s PD does
not reflect any generalist duties and she has not been asked to perform any generalist duties. S1
further maintained that there was nothing missing in Complainant’s PD.4

4 The GS-203-7 HRA PD noted the following duties: (a) uses Avue Digital Services' (ADS)
Position Design and Management Module to review and classify positions in common occupations
with readily identifiable evaluation criteria; (b) assists specialists on more complicated
classification issues by reviewing classification requests for consistency or completeness of
information, such as proper organizational lineup, position sensitivity forms, and personnel and
position requests authorizing new positions, changes, or deletions; (c) brings discrepancies to the
attention of the specialist; (d) independently administers the accuracy and completeness of selected
position and classification-related data elements, such as BUS codes, drug program designation,
furlough category, or FLSA status; (e) provides advice to managers and supervisors on typical
duty patterns and career ladders for common occupations in the agency; (f) assists managers and
supervisors in the use of ADS to locate standard position descriptions, modify existing or develop
new position descriptions, etc.; (g) provides advice on the basic principles and procedures of
classification; (h) ensures accurate processing of classification actions including maintenance of
organization charts and files; (i) answers routine questions and provides information on
classification-related matters, such as classification appeal procedures, wage area information,
position audits, collateral duty assignments, and reclassification procedures.
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SHRS1 reported that the direction within the Human Resources Directorate was to shift all Human
Resources Service Team (HRST) positions to a generalist between Classification and Staffing. He
noted that 85 percent of the HRSTs have accomplished this shift. SHRS1 further claimed that
retaining their position to a specialized field limits the career growth of personnel as they would
not be able to qualify to compete for other positions that generalists are able to compete for, which
is the bulk of HR positions. However, SHRS2 affirmed that Complainant has not performed any
generalist duties and that her position is properly classified.5

Claim (8)(a) - Inquiry Ticket Regarding Audit was Ignored and Cancelled

Complainant alleged that she attempted to follow up on the status of the desk audit, but her request
was ignored. SHRS1 explained that he cancelled the accretion of duties after learning that PAEs
were not eligible. He confirmed that at no time did he inform anyone that he was initiating an
accretion of duties because he was not certain that it was the proper course of action. SHRS1
further asserted that he was not certain how Complainant became aware that he made the request
and further contended that she never contacted him for updates on the position review. HRO1
surmised that Complainant may have felt ignored because there was a period that they were waiting
for more information from her supervisor and had no information to provide her. HRO1 also
claimed that she was not aware that the Complainant felt this was an act of discrimination.

Claim (8)(b) - Delayed in Updating AgLearn Training Record

Complainant stated that when an employee takes a training course, a certificate is received and the
employee’s AgLearn training record is updated. She stated it was necessary for management to
review the course so that a student can get credit for attendance. Complainant alleged, however,
that she never received credit and management discriminated against her by not providing it on
her record. She stated that she requested that her supervisor update her records and he never did.

S1 asserted that in August 2015, there was an annual training for R5. He stated that the requirement
was to register online through AgLearn for training. He contended that the process would have
been for him to review, but due to technical difficulties, he was not able to perform the review.
He asserted that the problem was reported and eventually resolved. SHRS1 stated that there was
a communication disconnect. He added that he assumed that since this was a formal training
course that it would be updated by the Albuquerque Service Center. He confirmed the records
were subsequently updated for all the employees that attended the training. HRS2 also stated that
she experienced technical difficulties using the AgLearn system which did not acknowledge
trainings that she had completed.

5 See SHRS1’s further explanation of Complainant’s level of work noted above.
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Claim (8)(c) – Not Provided a Copy of her 2015 Performance Appraisal

Complainant asserted that she requested a copy of her 2015 performance appraisal, but she never
received it. She also asserted that when she finally received it from S1, it was incomplete, as it
did not include the duties that she performed.

S1 explained that no one, including himself, received a timely copy of their performance appraisal
because of the previous supervisor. SHRS1 stated that none of the employees in the Classification
Team received their appraisal until April 2016. HRS1 also recalled that everyone’s performance
appraisals were delayed due to the various supervisory changes occurring because of the
reorganization.

Claim (8)(d) - Autism Discussed & Type-Cast as Indifferent to Hugs

Complainant affirmed that she does not have any disability, but the topics discussed during the
training included an exercise about people with disabilities, and her son is autistic. She noted that
the EEO trainer made a comment that people with autism do not like to be touched. Complainant
asserted that at the end of the training SHRS2 and S3 hugged her as if to feel sorry for her.

S2, S1, SHRS1 and SHRS2 stated that they attended the Agency’s training on the prevention of
harassment and a hostile work environment. None of management officials have any knowledge
of this claim.

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”).

Genetic Information Claim

As an initial matter, we note that Complainant alleged discrimination based on genetic information
in violation of Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 42
U.S.C. § 2000ff et seq., which prohibits employers from discriminating against any employee
because of genetic information with respect to the employee. 29 C.F.R. § 1635.1. Genetic
information means information about (i) an individual's genetic tests; (ii) the genetic tests of that
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individual's family members; and (iii) the manifestation of a disease or disorder in family members
of such individual (family medical history). 29 C.F.R. § 1635.3(c).
During the investigation, Complainant stated that “genetic information and disability are protected
by law and medical does not have to be disclosed legally yet it gets forced to be disclosed.”
Complainant did not specify what genetic information she believes was used to discriminate
against her. Complainant referenced her son’s condition of autism but has not established that any
management official was aware of her son’s condition. The Commission finds that Complainant's
complaint is devoid of any allegations or facts regarding genetic tests, the genetic tests of her
family members, or her family medical history. In the absence of contradicting evidence, we find
that to the extent that the Agency had any knowledge or awareness of Complainant's genetic
information, Complainant has not met her burden of proof to show that such information played a
role in any of the incidents at issue herein.

Disparate Treatment

To prevail in a disparate-treatment claim absent direct evidence of discrimination, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme Court. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of
establishing a prima facie case by demonstrating that she was subjected to an adverse employment
action under circumstances that would support an inference of discrimination. Furnco Constr.
Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the
facts of the case. McDonnell Douglas, 441 U.S. at 802 n. 13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

We agree with the Agency in finding that Complainant failed to establish that she was subjected
to disparate treatment with respect to any of her alleged claims. Specifically, we find that
Complainant failed to prove that she was treated less favorably than similarly situated employees
who are not members of the Complainant’s protected classes. Even assuming arguendo that
Complainant established a prima facie case of discrimination on the alleged bases, we find that the
Agency has articulated legitimate, nondiscriminatory reasons for its actions.

With respect to Claims (1), (5) and (6), we agree with the Agency in finding that Complainant
failed to establish that she was performing GS-11 level work, or that she trained HR Specialists
while continuing to be denied promotions or raise in pay due to an increase in workload at the GS-
11 level. Complainant provided only her perception that she was performing work at the GS-11
level while S3, S1 and SHRS1 testified that she was not performing GS-11 level work.
Additionally, while S1 acknowledges that Complainant’s workload increased, the record shows
that everyone’s workload increased due to changes in process and systems. HRS2 also
corroborates management’s statement that every employee experienced a temporary increase in
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workload. In addition, SHRS1 explains that it was discovered that Complainant was performing
lower-level work prior to the increase her duties.

We also agree with the Agency in concluding that Complainant failed to establish that she was
discriminatorily denied promotions. The record is devoid of evidence that Complainant is
qualified to perform any GS-201-7/9/11 position. Several management officials confirmed that
Complainant was not selected because: (1) she was not chosen as one of the top three candidates
for recommendation; and/or (2) she did not meet the criteria for non-competitive promotion; and/or
(3) she applied for a position for which she was not qualified. Additionally, the record
demonstrated that on several occasions, the Agency gave Complainant an opportunity to apply for
GS-203-7/8 positions that were designed to remedy PAEs during a 2013 reorganization, but
Complainant failed to apply to these positions.

In addition, the record shows that SHRS1 cancelled the desk audit because he learned that PAEs
were ineligible for an accretion of duties promotion. Moreover, the record shows that Complainant
was not the only employee whose pre-approved desk audit was cancelled. Lastly, Complainant
did not provide any evidence that the cancellation was motivated by any of her protected classes.

With regard to Claim (2), several management officials confirmed that all employees were
required to report, in person, to the training and that multiple employees’ requests to participate
via teleconference were denied. In addition, S1 explained that he did not issue any awards to
anyone on his staff. Accordingly, the record does not support discrimination with respect to Claim
(2).

As to Claim (3), the record establishes that the purpose of the mid-year review was to inform
Complainant of the progress of her performance. Management officials explain that the mid-year
review is not a formal rating and in fact, Complainant was not issued a rating. We also find
insufficient evidence in the record to establish that Complainant was performing higher than the
satisfactory level during the time of her mid-term review.

Regarding Claim (4), while the record supports Complainant’s claim that she was no longer
allowed to telework full-time, the record is devoid of evidence that Complainant was treated
differently than similarly situated co-workers or that any of the responsible management official
were motivated by discriminatory animus. In fact, the undisputed record shows that Complainant
worked from home more than any of her co-workers. Accordingly, we agree with the Agency’s
finding that Complainant failed to prove this claim as alleged.

With respect to Claim (7), we find that even if Complainant received her PD in an untimely
manner, she has nevertheless failed to show that such Agency action was motivated by
discriminatory or retaliatory animus. We also find insufficient evidence in the record to establish
that Complainant was in fact performing generalist duties as she alleges.

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EPA Claim

Complainant also alleged a violation of the Equal Pay Act (EPA). Specifically, Complainant
alleged that her workload increased and that she performed the classification and staffing duties of
a GS-0201-11 without a raise in pay.
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 an EPA claim, a complainant must show that he or she 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.

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).

Complainant alleged that her regular assigned duties included assisting the classifiers, but she was
asked to do the work of classification and staffing specialist. For example, Complainant claimed
that GS-11 classification specialists always filled in the form and signed in the “Classifier’s
Signature” block in an individual’s position description. Complainant stated that she and other
HRAs began filling in the form, determining other information, and signing in the Classifier’s
Signature block. Further, Complainant claimed that classification specialist began performing
HRA work as well including building and updating positions in the Agency’s EmpowHR system.
Thus, Complainant contended that there was overlap, yet no pay adjustment for higher-level work.
Complainant noted that two female co-workers had additional and increased duties as well and
that they all were told they had to “pick up the workload.”

Upon review, we find that Complainant has failed to establish a prima facie case of discrimination
under the EPA. Complainant failed to specifically identify a male employee who received higher
pay for the same duties. We note that Complainant only identified female employees who
reportedly were performing higher-level duties and not receiving higher-level pay for the same
duties. Furthermore, the record evidence shows that all of the employees working in the Region
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5 Service Center were female. Accordingly, we find that Complainant has not established a prima
facie case of discrimination under the EPA.

Hostile Work Environment – Claim (8)

To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily
protected class; (2) that she was subjected to harassment in the form of unwelcome verbal or
physical conduct involving the protected class; (3) the harassment complained of was based on her
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

Assuming Complainant has presented preponderant evidence to establish that the events in Claim
(8) took place, she did not establish that she was subjected to conduct that was sufficiently severe
or pervasive to constitute a hostile work environment as to this claim and all claims when
considered together. Furthermore, we find that Complainant failed to demonstrate that the alleged
conduct was motivated by any of her protected classes. Accordingly, we conclude that the
evidence in the record does not support the finding that Complainant was subjected to a
discriminatory or retaliatory hostile work environment.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final decision.

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.
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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.

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.
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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