[Redacted], Diana M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMar 25, 2021Appeal No. 2020002059 (E.E.O.C. Mar. 25, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Diana M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002059 Hearing No. 430-2017-00077X Agency No. 2004-0659-2011101990 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 16, 2019 notice of final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Equal Pay Act (EPA) of 1963, as amended, 29 U.S.C. § 206(d) et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Recreation Therapist (RT), GS-0638-11, at the Agency’s W.G. Hefner Veterans Affairs Medical Center, in Salisbury, North Carolina. On June 1, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her as follows: 1. The Agency discriminated against her based on race (African American) and sex (female) when on January 20, 2007, management refused to reclassify her position of Supervisory Recreation Therapist from a GS-11 to the GS-12 grade level. 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. 2020002059 2 2. The Agency discriminated against her based on race, sex, and in reprisal for prior EEO activity when on February 22, 2011, she was informed that management refused to reclassify her position of Supervisory Recreation Therapist from a GS-11 level to a GS- 12 level. 3. The Agency discriminated against her based on race, sex, and in reprisal for protected EEO activity when on July 21, 2011, pursuant to a desk audit, a decision was made by the classification unit that the Supervisory Recreation position description was correctly classified at the GS-11 grade level. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. Over Complainant's objections, the AJ assigned to the case (AJ1) granted the Agency’s motion for a decision without a hearing and issued a decision without a hearing on June 17, 2013. AJ1 found the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext for discrimination. The Agency issued a final order fully implementing the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant appealed the Agency’s final order to the Commission. In EEOC Appeal No. 0120133222 (Nov. 12, 2015), the Commission affirmed the Agency’s final order. Regarding claim 1, the Commission found the Agency noted that it had a reorganization that resulted in the downgrading of the position. Further, the position was re-classified before it was advertised, and before Complainant was selected. With regard to claim 2, the Agency declined to rule on Complainant’s appeal of the denial of the classification of her position because there was some confusion about which position description was accurate; therefore, the Agency requested a desk audit. With regard to claim 3, the Agency conducted a desk audit as a result of the confusion between the different position descriptions, and the result of the desk audit showed that Complainant's position was correctly classified as a GS-11. In considering whether the Agency’s articulated legitimate, nondiscriminatory reasons for its actions were pretext for discrimination, the Commission found Complainant did not offer any more than her conclusory assertions that the Chief of the Consolidated Classification Unit was “out for her,” and that the previous Supervisory Recreation Therapists were Caucasian males to show that the Agency was motivated by unlawful intent. The Commission noted that to the extent that Complainant had evidence that discriminatory animus played a role here, she failed to depose those individuals during discovery. Further, the Commission found that nothing in the record supports a finding that the Agency was motivated by discriminatory or retaliatory animus. In EEOC Request No. 0520160102 (May 3, 2016), the Commission affirmed the prior finding of no intentional discrimination. 2020002059 3 However, the Commission found that Complainant raised a claim under the Equal Pay Act (EPA) that had not been adjudicated. Thus, it remanded the EPA claim for further processing. The Agency conducted a supplemental investigation of the following claim: whether Complainant was subjected to discrimination on the basis of sex (female) in violation of the Equal Pay Act when she was paid unequal wages upon assuming the position of Supervisory Recreation Therapist, GS-11, in 2007 and continuing thereafter. Complainant requested a hearing and the case was assigned to AJ2. The Agency filed a Motion for a Decision Without a Hearing. Complainant filed a response. AJ2 thereafter sought additional information from the parties and they each responded to AJ2’s instructions. AJ2 issued a decision granting summary judgment in favor of the Agency on the EPA claim. AJ2 found the Agency established an affirmative defense since the 2007 classification was based on a reasonable factor other than sex. Specifically, AJ2 noted that the position was graded as a GS-12 in August/September 2003, pursuant to a job description that listed the job as reporting to the Interim Associate Director (AD) for Operations. In 2007, the job was reclassified as a GS- 11, when the job description showed that it reported to the Chief of Physical Medicine and Rehabilitation Services (PM&R/SCIS). AJ2 noted Complainant did not challenge the Agency’s assertion that the former was the head of the facility, while the latter was the head of a service line. AJ2 also noted Complainant did not contest the Agency’s assertion that its classification system awards more points for jobs that report to the head of a facility than it does for jobs that report to the head of a service line, nor did she cast doubt on the Agency’s assertion that this difference fully explained why the job went from a GS-12 to a GS-11. AJ2 found no basis for Complainant’s assertion that the job had routinely been classified as a GS-12 at other facilities. AJ2 noted in support of her assertion, Complainant cited to a single page in the ROI containing a USA Jobs Vacancy Announcement for a job in Perry Point Maryland in 2011, and nothing more. AJ2 noted when asked for further evidence, she failed to provide any. AJ2 noted in 2018, the job was reclassified to a GS-12 throughout the Veterans Integrated Service Network (VISN) and Complainant received the benefits of the change along with several coworkers, all of whom were female. However, AJ2 determined Complainant did not show that the VISN 6 graded the job of a male at a different facility at a higher grade at any point prior to 2018. Rather, AJ2 noted the evidence showed that “GS-11 or lower was the rule rather than the exception for such jobs at other facilities.” AJ2 recognized that Complainant presented an affidavit from her predecessor, signed in 2013, challenging the authenticity of the 2003 job description cited by the Agency as the basis for the last classification of his job by the Salisbury VA prior to his retirement. However, AJ2 noted the predecessor does not deny that he reported to the Interim AD at the time and Complainant presented no challenge to the assertion that the reporting relationship, standing alone, provided the extra points needed to support a GS-12 classification. 2020002059 4 Further, AJ2 found the predecessor’s statement does not contradict the Agency’s assertion that the job description cited was contained in Agency records and formed the basis for the final classification of the job while the predecessor held it. Moreover, the predecessor does not challenge the Agency’s assertion that he typically reported to the head of the facility, not the head of a service line. To the extent the predecessor implies and Complainant asserts, that the 2003 job description is a phony created in 2007, AJ2 found Complainant presented no proof of malfeasance beyond the predecessor’s speculation, which is insufficient. The Agency issued its notice of final order fully implementing the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s notice of final order fully implementing the AJ’s decision finding no discrimination. 2020002059 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020002059 6 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. 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 25, 2021 Date Copy with citationCopy as parenthetical citation