U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
,
,
Aida E.,1
Julietta K.,
Juanita K.,
Yvette H.,
Complainants,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Food and Nutrition Service),
Agency.
Appeal Nos. 0120181052, 0120181053, 0120181055, 0120181056
Agency Nos. FNCS-2017-00079, FNCS-2018-00092, FNCS-2017-00115, FNCS-2017-00091
DECISION
Complainants filed appeals with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 14, 2017, final
decision concerning their equal employment opportunity (EEO) complaints 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. and the Equal Pay Act (EPA) of 1963, as amended, 29 U.S.C. § 206(d) et
seq. For the following reasons, the Commission VACATES the Agency’s final decision.
BACKGROUND
Complainant 1 is a Program Specialist, GS-0301-9, at the Agency’s Food and Nutrition Service
(FNS), Western Regional Office (WRO), Food Distribution Programs (FDP), Community
Nutrition Branch (CNB), Special Nutrition Programs (SNP), located in San Francisco, California.
1 This appeal has been randomly assigned pseudonyms which will replace Complainants’ names
when the decision is published to non-parties and the Commission’s website.
0120181052, et al.
2
Complainant 2 is a Management Services Specialist, GS-0301-9 at the Agency’s FNS, WRO,
Grants Management and Administrative Services (GMAS) Division, Administrative Services Unit
(ASU), located in San Francisco, California.2
Complainant 3 is a Program Specialist, GS-0301-9, FNS, WRO, Special Nutrition Programs
Branch (SNPB), Special Nutrition Programs Division (SNP), located in San Francisco, California.
Complainant 4 is a Program Specialist, GS-0301-9, FNS, WRO, SNPB, SNP located in San
Francisco, California.
Complainants applied to Program Specialist positions with the Agency through the returning Peace
Corps Volunteers (RPCV) Noncompetitive Eligibility (NCE) status program. Complainants
applied for the positions by submitting application materials, including a cover letter and resume,
transcript, and a description of their Peace Corp service. Complainants did not apply for specific
grade levels and there was no official Vacancy Announcement for the positions. Complainants
each accepted Agency offers for a position as a Program Specialist, GS-0301-7, between August
2015 and October 2015.
Complainant 1 and Complainant 2 state they attempted to negotiate their grade and salary based
on their work experience. They stated they were told that a Master’s degree was required to be
hired at the GS-9 level.
Complainants claim that subsequent to accepting their offers and working in the Program
Specialist position, they learned that two male candidates (Comparative 1 and Comparative 2),
were offered Program Specialist positions at the GS-9 level. Complainants acknowledge that
Comparative 1 did not accept the Agency’s offer. Complainants state that Comparative 2 was
hired as a Program Specialist, GS-9 effective October 17, 2016. Complainants state Comparative
2 was hired under the same RPCV NCE hiring authority for the same position they had; however,
he was hired as a GS-9. Complainants assert they had the same qualifications as Comparative 2,
but he received a higher grade and more pay than they did.
RMO 1 (responsible management official) notes that he was employed by the Agency’s Food
Safety and Inspection Services (FSIS) from March 2014 to October 2016. Specifically, from
August 2015 through fall of 2016, he was a Supervisory Human Resources Specialist in the Office
of Human Resources (HR). RMO 1 states he was detailed as Branch Chief over the HR team
responsible for providing staffing and classification services to FNS. When asked the name and
job title of the other FSIS employees involved in determining the grade for complainants, RMO 1
states he no longer has access to any of the records during his employment with FSIS. RMO 1
states he did not recall telling Complainants that to enter service as a Program Specialist, GS-9,
that they had to have a Master’s degree. He states a Master’s degree is one way to meet the
qualifications requirements at the GS-9 level, but it is not mandatory or required.
2 Complainant 2 states her position was previously titled Program Specialist.
0120181052, et al.
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RMO 1 states the OPM General Schedule Qualifications Standards apply to all agencies when
filing GS positions.
RMO 2 is the Regional Administrator, FNS, WRO located in San Francisco. He states he has held
the position as Regional Administrator since May 2014. As Regional Administrator, he
administers the entire regional office – Office of Public Affairs, GMAS, Supplemental Nutrition
Assistance Program (SNAP), SNP, and the Office of the Regional Administrator. RMO 2 notes
that Complainants report to a Branch Chief, who in turn reports to a Division Director, who in turn
reports to him as the Regional Administrator. RMO 2 states he had no role in the selection process
and grade level determination for Complainants. RMO 2 notes that the FNS recruiter, RMO 3a,
worked with staff at FSIS, to classify resumes for the RPCV employees. RMO 2 explains that
Comparative 1 was offered a position under a different job announcement and under different
hiring authority. Specifically, he states Comparative 1 was offered a position under the “r”
authority which is a Fellow Experience Program.
RMO 3a states she has worked as a Human Resources Specialist with FNS, Human Resources
Division (HRD), since 2010 and is located in Alexandria, Virginia.3 RMO 3a notes she is the
Peace Corps Coordinator for the Agency and states the Complainants entered into the Agency
through the RPCV program. RMO 3a states she had no role in the determination of the grades
into which the Complainants were hired. She notes that function was performed by the FSIS HR.
RMO 3a states the policy used to determine the grade levels at which Complainants would be hired
was OPM’s Qualification Standards. RMO 3a states the job for which Complainants applied was
usually open from grades 9 – 12. RMO 3a notes that Complainants applied for Program Specialist
positions under the Noncompetitive RPCV program. She explains that upon successful completion
of Peace Corps service, the candidates receive 12 months of noncompetitive eligibility hiring status
within the federal government. RMO 3a notes that Comparative 1 was offered a position under
the Agency’s Fellow Experience program which he declined. RMO 3a states that Comparative 2
applied for a Program Specialist position under the Peace Corps Noncompetitive Eligibility
program and was hired as a GS-9 in October 2016. RMO 3a states she was not involved in the
selection nor qualification determination for Comparative 2 and notes this was performed by FSIS.
RMO 3b states she has been a Branch Chief, FNS, SNP, WRO located in San Francisco, California
since 2013. She states she was the first line supervisor to Complainant 3 and Complainant 4. RMO
3b states she had no role in determining the grades at which the Complainants would be hired. She
explains that FSIS, the Agency’s HR servicing arm, made the grade determinations.
RMO 4 states she has been a Branch Chief, FNS, SNP, WRO located in San Francisco, California
since 2012. RMO 4 notes she was Complainant 1’s first line supervisor from the date of hire
through September 30, 2016. RMO 4 states she had no role in the determination of Complainants’
grade levels. She notes they provided applicant information to HR for candidates they were
recruiting and that HR made the grade/qualifications determination.
3 We note the Agency’s final decision refers to two different people as RMO 3. For clarification
purposes, we list those individuals as RMO 3a and RMO 3b.
0120181052, et al.
4
RMO 5 states she was a Supervisory Human Resources Specialist/Branch Chief with FSIS, Human
Resource Operations Division (HROD), Programs and Field Operations located in Minneapolis,
Minnesota since June 2007. RMO 5 notes that RMO 3a provided the application packets to
FSIS/OHR to review qualifications for Complainants. She states that HROD offered assistance to
their OHR counterparts on this tasking. RMO 5 states she provided the resumes and attachments
to two of their HR Specialists to review the applications packets for a qualification determination.
She explains that qualifications were determined based on OPM General Schedule Qualifications
Standards, GS-0301 Miscellaneous Administration and Program Series. She states that
FSIS/HROD was not asked to perform the qualifications for Comparative 2 when he was brought
on board.
The record contains an affidavit from RMO 6, who has been Team Lead, FNS, SNAP, WRO,
located in San Francisco, California since October 2016. RMO 6 was the Selecting Official for
Complainant 2 and supervised her from October 2015 to October 2016. RMO 6 stated that she
reviewed Complainant 2’s application under the RPCV program and asked that Complainant 2 be
hired as a Management Service Specialist. RMO 6 stated at the time the Management Service
Specialist was graded at the 9/11/12 level. RMO 6 stated HR came back and informed RMO 6
that Complainant was classified as a GS-7. RMO 6 noted at the time, the Management Service
Specialist position did not accommodate a GS-7. RMO 6 stated she had no role in the
determination of grades and noted that was performed by HR. RMO 6 stated that FSIS determined
the grades at which the applicants were qualified. RMO 6 noted the Agency policy with regard to
entry grades did not change between the time Complainants and Comparative 2 were hired.
However, RMO 6 stated FSIS performance, at the time, was not satisfactory and they were not
giving appropriate evaluations of the qualifications of the selectees. She noted that since that time,
FSIS hired additional professional staff to restore their reputation.
The record contains an email dated June 16, 2015, from RMO 3a to RMO 1 and RMO 5 with a
“cc” to Person X in FNS in which RMO 3a asks RMO 1 and RMO 5 to determine the qualifications
for the attached RPCVs, including all four of the Complainants.
In a June 26, 2015 response from RMO 5 to RMO 3a, RMO 1, and Person X from FNS, the
qualification determinations are listed for the final applicants, including all four Complainants.
The record also contains an email dated February 2, 2017 from RMO 5 to Person Y from FSIS
with a “cc” to four other individuals in FSIS and one individual in FNS. In this email, RMO 5
notes that FNCS is involved with EEO investigations and they are trying to determine why
Comparative 2 was selected as a GS-9 rather than a GS-7. RMO 5 states from the information she
has, Person Y performed the qualifications on Complainant 4 and Complainant 1. RMO 5
requested Person Y search his files or archives to see if he kept the qualification sheets for the two
applicants that he qualified. RMO 5 states that Person Z performed the qualification of
Complainant 3. RMO 5 also states “Our office did not qualify [Comparative 2]. Per [Person A’s]
discussion, [RMO 1] qualified [Comparative 2].”
0120181052, et al.
5
The record contains no qualification sheets on any of the four Complainants. Further, there is no
indication Person X, Person Y, or Person Z were interviewed as part of the investigation.4
In addition to alleging discrimination regarding the grade level at which they were hired,
Complainants also argue that they were paid less than similarly situated male colleagues for
performing substantially equal work.
Complainant 1 states as a Program Specialist, GS-7, she divided her time between the Women,
Infants, and Children (WIC) and Food Distribution teams and her duties included providing
technical assistance to State agencies and Indian Tribal Organizations, clarifying regulations and
policies, facilitating partnerships and information sharing between programs, developing training
material and promoting best practices, tracking and reporting on relevant data, providing program
insight and ITO/SA background to colleagues and external partners. Complainant 1 notes that she
trained Comparative 2 when he onboarded and assigned him tasks as he learned the programs.
When asked what her current job duties entailed, Complainant 1 states her daily tasks as a GS-9
were similar; however, now she has greater autonomy and authority in her scope of work.
Additionally, Complainant 1 states when she was a GS-7, Program Specialist, Comparative 2’s
skill, effort, responsibility and working conditions were the same as hers.
Complainant 2 states as a Program Specialist, GS-7, she managed property, office supplies, mail
operations, government vehicles, shared equipment reservations, keys/door access, and building
services. Complainant 2 states she assisted with procurement of goods and services, purchase
order records, reconciliations, and vendor coordination. She notes she also helped process time
and attendance records for staff. She states that currently as a Management Services Specialist,
GS-9, she performs similar job duties as she did when she was a GS-7, Program Specialist, but
with more authority, autonomy, and responsibilities. Complainant 2 states while she was in a
different division than Comparative 2, when she was a GS-7, Program Specialist, she was required
to perform substantially equal skill, effort, and responsibility under similar working conditions.
Complainant 3 states as a Program Specialist, GS-7, her duties included providing training and
technical assistance to State agencies and other cooperating partners; developing training material
and sharing best practices; interpreting policy and providing clarification of program rules and
regulations; participating in required monitoring activities such as the Management Evaluation and
accompanied local-level reviews; and contributing to special projects and training events as
directed. Complainant 3 states as a GS-9 she has increased responsibility and autonomy in her
work. Complainant 3 states that Comparative 2 started at a Program Specialist, GS-9, with the
same or comparable qualifications. She states when he was hired as a GS-9, Comparative 2’s
effort, responsibility, and working conditions were the same as hers when she was hired as a GS-
7.
4 We note that RMO 5 named Person X as a person having first-hand knowledge of the allegations.
0120181052, et al.
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Complainant 4 states that as a Program Specialist, GS-7, she evaluated State programs, provided
technical assistance to State partners, facilitated and coordinated special initiatives, and provided
training and support to new employees. She states her job duties and responsibilities were
comparable to Comparative 2 who was hired as a Program Specialist, GS-9. Complainant 4 states
that the core of her day to day activities and scope of work did not change, but her responsibilities
and autonomy in high level tasks increased with an additional year of work with FNS.
Complainant 4 states that she and Comparative 2 were both Program Specialists working in the
SNP division of WNS, WRO and that their duties, responsibilities, skills, effort, and working
conditions were the same or very similar.
In his affidavit, RMO 1 notes that Complainants were hired before he began employment at FNS.
When asked about the skills, effort, and responsibility required of Complainants at the Program
Specialist, GS-7 level and Comparative 2 at the Program Specialist, GS-9 level, he referred to the
position description in the record. RMO 1 notes that employees are assigned work per the
classified position description and their salary is determined by their grade level.
When asked about the job duties of Complainants who were hired as Program Specialists at the
GS-7 level and Comparative 2, hired as a Program Specialist at the GS-9 level, RMO 2 states he
was not their direct supervisors. RMO 2 notes that the Program Specialist position is a career track
position at the GS-7, 9, 11, and 12 level, depending on the candidate’s qualifications and
experience at the time of the job offer. He states that as the grade level increases, the responsibility
increases. When asked about the specific skill, effort, and responsibility required of Complainants
and Comparative 2, RMO 2 replied he was not the direct supervisor of any of Complainants or
Comparative 2.
The record also contained an affidavit from an HR Assistant Intern from July through December
2015. The HR Assistant Intern explains an HR Specialist reviewed the applicants’ qualifications
and made the determination of grade selection. He states he had no role in determining the grades
of Complainants. The HR Assistant Intern did not remember if Comparative 2 was hired for the
Program Specialist, GS-9 position. Additionally, he did not remember Complainants’ job duties
as a Program Specialist, GS-7 or Comparative 2’s job duties as a Program Specialist, GS-9.
When asked what the job duties were for Complainants and Comparative 2, RMO 3a stated “The
ones stated in their position descriptions.” In response to questions about whether Complainants
performed in a Program Specialist position that required substantially equal skill, effort, and
responsibility, under similar working conditions as Comparative 2, RMO 3a stated she was not
involved in the selection or qualifications of Complainants. RMO 3a also stated the Comparative’s
qualifications were performed by FSIS.
When asked whether Complainants were paid less than a similarly situated male colleague for
performing a Program Specialist position that required substantially equal skill, effort, and
responsibility under similar working conditions, RMO 3b responded that “[a]s supervisors we
ensure that they are given grade appropriate work according to their position description and
performance workplan.”
0120181052, et al.
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When asked about the skills, effort, and responsibility required of Complainants at the Program
Specialist GS-7 level, RMO 3b stated that Complainant 3 and Complainant 4 were required to
perform work according to their position description and performance workplan for their grade
levels. RMO 3b also stated that though not his direct supervisor, Comparative 2 would also be
required to perform work according to the position description and performance workplan for his
grade level.
RMO 4 was the final Selecting Official for Complainant 1’s Program Specialist, GS-7 position
and Complainant 1’s first line supervisor when hired. When asked what Complainant 1’s job
duties were as a Program Specialist, GS-7, she states the duties were outlined in the Program
Specialist, GS-7 position description and in her performance workplan. Regarding Comparative
2’s job duties, RMO 4 states his duties were outlined in the position description and performance
workplan for a GS-9 Program Specialist. RMO 4 notes that the job duties at each grade level are
similar, however, the difference is in the tasks assigned and how they carry out their work. RMO
4 said “[g]enerally speaking, the higher graded positions require less supervision.” RMO 4 also
states under her supervision, Complainant 1 was performing at a GS-7 level and was assigned tasks
based on her grade level. RMO 4 states she was not Comparative 2’s first line supervisor and did
not assign him tasks or evaluate his performance.
RMO 5 was asked what skills, effort, and responsibility were required of Comparative 2 when he
was hired as a Program Specialist, GS-9, and she responded she had no knowledge of this. RMO
5 also stated she had no knowledge of the skills, effort, and responsibility required of Complainants
at the Program Specialist, GS-7 level.
In response, Complainants rebut RMO 5’s reference to the OPM General Schedule Qualification
Standards, GS-0301, Miscellaneous Administration and Program Series. Complainants state
according to the OPM website, there are no Individual Occupational Requirements for this series,
therefore, this reference fails to demonstrate how FSIS arrived at Complainants’ grade
determinations. In addition, they note RMO 5’s reference to the OPM schedule fails to delineate
specific qualifications for the GS-7 and GS-9 levels that were used in Complainants’ and
Comparative 2’s situations. Complainants contend that FSIS HRD provide no satisfactory
explanation for why Comparative 2 was qualified at the GS-9 level and was paid at a higher rate
for performing a Program Specialist position that required substantially equal skill, effort, and
responsibility as their Program Specialist GS-7 positions.
RMO 6 stated that Complainant 2’s job duties as a Program Specialist, GS-7 were those depicted
in her position description for her grade level and included some duties at higher levels. RMO 6
stated the job duties of Comparative 2 when he was hired were the same duties as those of
Complainants and that the work that Complainant 2 did was “much more than what Comparative
2 is doing.” RMO 6 admitted that Complainants were paid less than a similarly situated male
colleague for performing a Program Specialist position that required substantially equal skill,
effort, and responsibility under similar working conditions. RMO 6 also stated Comparative 2 was
doing work at the same level as Complainant 1.
0120181052, et al.
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When asked if Comparative 2 entered into the work unit performing substantially equal work as
Complainants and whether he was paid more, RMO 6 replied “yes” to both questions. RMO 6
stated she did not know why Comparative 2 was paid more and stated she did not think that FSIS
did a good job in the evaluation process. RMO 6 was asked about the pay differential and she
said, “I believe that the only difference resided with the staff at FSIS in conducting the
determination of the grade level.”
Complainants all filed EEO complaints alleging the Agency discriminated against them on the
basis of sex (female). Complainant 1 filed an EEO complaint on February 10, 2017. Complainant
2 filed an EEO complaint on February 16, 2017. Complainant 3 filed an EEO complaint on
February 24, 2017. Complainant 4 filed an EEO complaint on February 20, 2017.
The Agency accepted the following claims:
Complainant 1 – FNCS-2017-00079
Whether Complainant was subjected to discrimination based on sex (female) when:
a. on October 27, 2016, she learned at the time of her hire, two similarly-situated male
colleagues were hired as a GS-9 Program Specialist and she was hired as a GS-7
Program Specialist for essentially the same position; and
b. on October 27, 2016, she learned that in violation of the Equal Pay Act, she was
being paid less than a similarly-situated male colleague for performing a Program
Specialist position that required substantially equal skill, effort, and responsibility
under similar working conditions.
Complainant 2 – FNCS-2017-00092
a. on October 27, 2016, she learned at the time of her hire, two similarly-situated male
colleagues were hired as a GS-9 Program Specialist and she was hired as a GS-7
Program Specialist for essentially the same position; and
b. on October 27, 2016, she learned that in violation of the Equal Pay Act, she was
being paid less than a similarly-situated male colleague for performing a Program
Specialist position that required substantially equal skill, effort, and responsibility
under similar working conditions.
Complainant 3 – FNCS-2017-00115
a. on November 1, 2016, she learned at the time of her hire, two similarly-situated
male colleagues were hired as a GS-9 Program Specialist and she was hired as a
GS-7 Program Specialist for essentially the same position; and
0120181052, et al.
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b. on November 1, 2016, she learned that in violation of the Equal Pay Act, she was
being paid less than a similarly-situated male colleague for performing a Program
Specialist position that required substantially equal skill, effort, and responsibility
under similar working conditions.
Complainant 4 – FNCS-2017-00091
a. on November 1, 2016, she learned at the time of her hire, two similarly-situated
male colleagues were hired as a GS-9 Program Specialist and she was hired as a
GS-7 Program Specialist for essentially the same position;
b. on November 1, 2016, she learned that in violation of the Equal Pay Act, she was
being paid less than a similarly-situated male colleague for performing a Program
Specialist position that required substantially equal skill, effort, and responsibility
under similar working conditions.
The Agency dismissed Complainants allegations that the Agency abused the mediation process
when management officials came unprepared to answer any questions, resulting in limited
communication during the actual mediation session. The Agency noted that Complainants’
allegations constituted a “spin-off” complaint. The Agency noted that under 29 C.F.R.
§1614.107(a)(8), an Agency is required to dismiss a spin-off complaint that alleges dissatisfaction,
unfairness, or bias in the processing of a discrimination complaint. The Agency stated
Complainants’ allegations were being referred to the FNS Civil Rights Director, who is the
relevant Agency official responsible for the quality of FSA EEO complaint processing. The
Agency noted the Civil Rights Director is required to respond to Complainants’ concerns and
provide a copy of the response to the Office of Adjudication. The Agency noted the information
obtained will be incorporated into the complaint file for the subject complaint.
The accepted claims were consolidated and a joint investigation and a supplemental investigation
were conducted. At the conclusion of the investigations, the Agency provided Complainants with
a copy of the report of investigation and notice of their right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). In accordance with
Complainants’ requests, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
The decision concluded that Complainants failed to prove that the Agency subjected her to
discrimination as alleged.
In its decision, the Agency determined with regard to their disparate treatment claim, that
Complainants failed to establish a prima facie case of discrimination based on sex. Specifically,
the Agency found that Comparative 1 and Comparative 2 were not similarly situated to
Complainants. Regarding Comparative 1, the Agency noted he was offered a position as a GS-9
Data Analyst, which was different than Complainants’ position. The Agency also noted that
Comparative 1 did not apply through the RPCV and he was extended an offer through the Agency’s
Fellow Experience Program and he declined the offer.
0120181052, et al.
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Regarding Comparative 2, the Agency noted that he applied to the Agency through the RPCV, as
did Complainants, and his qualifications were similar to Complainants at the time of his hire.
However, the Agency noted that Complainants were hired between August 2015 and October
2015, whereas, Comparative 2 was hired in October 2016, almost one year later. The Agency
found given the one-year time lapse between Complainants’ hire and Comparative 2’s hire,
Comparative 2 is not similarly situated to Complainants. The Agency noted Complainants do not
assert that there were other similarly situated comparatives hired within the same time frame.
Assuming arguendo that Complainants established a prima facie case of sex discrimination, the
Agency stated it provided a legitimate, nondiscriminatory reason for its actions. The Agency
stated FSIS made a determination on Complainants’ qualifications based on standards set forth in
the OPM - General Schedule Qualifications Standards for the GS-0301 Miscellaneous
Administration and Program Series. The Agency noted that RMO 5 proffers that based on a review
of their qualifications using the OPM schedule, Complainants qualified at the GS-7 level.
Regarding Comparative 2, RMO 5 asserted that FSIS was not asked to perform a similar analysis
for Comparative 2 when he was hired.
The Agency noted that in support of their complaint, Complainants claim they received notice
there was a job classification error, which resulted in a reassignment. Complainants note only
females were adversely affected. The Agency stated that even assuming an error occurred in
evaluating the applicants, Complainants could not prevail on a sex discrimination claim because
they cannot prove by a preponderance of evidence that management acted with discriminatory
animus.
Regarding the alleged Equal Pay Act violation, the Agency found Complainant failed to establish
a prima facie violation because they failed to show that they performed substantially equal work
in terms of skill, effort, and responsibility under similar working conditions. The Agency stated it
accepted Complainants’ contention that the common core of tasks, which they performed, as
Program Specialist staff were similar to tasks which Comparative 2 performed. However, the
Agency noted that all Complainants stated that after progressing to the GS-9 they were given
increased autonomy, increased job responsibilities, and job duties. The Agency argued
Complainants statements are consistent with management’s statement that Complainants worked
in accordance with the grade for which they were hired, as described in their position description.
The Agency argued that Complainants statement that they were capable of performing work at the
GS-9 grade level and performed work above their grade level is insufficient to substantiate their
claims, as the position description and “Statement of Differences” (a document which is part of
the position description) do not support Complainants’ allegations. The Agency stated
Complainants were hired into developmental positions and worked in this capacity until promotion
to the GS-9. Thus, the Agency found Complainants’ level of responsibility was not the same as
Comparative 2 who was hired as a Program Specialist, GS-9.
On appeal, Complainants accept that Comparative 1 was offered a different position under a
different hiring authority and thus, was not similarly situated to them.
0120181052, et al.
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However, Complainants note that Comparative 2 applied to the Agency through his RPCV NCE
status and held qualifications similar to Complainants at the time of his hire. Complainants argue
the one-year time lapse was not a sufficient reason for the hiring discrepancy as there were no
substantial changes in the hiring process, qualifications criteria, or personnel involved.
Complainants note that RMO 1 affirmed that the qualifications criteria did not change between the
time they were hired at the GS-7 level and the time Comparative 2 was hired at the GS-9 level.
Complainants argue that if the standards did not change, then the one-year time lapse between
hiring is not relevant. Complainants state standards are developed so that, regardless of the hiring
manager and date, qualifications can be compared amongst all candidates in a formal, equal way.
Complainants claim hiring decisions should be comparable.
Complainants note that the Agency stated that FSIS was not the hiring arm responsible for
Comparative 2’s grade qualification and was not asked to perform his qualifications.
Complainants note RMO 5 stated FSIS was not asked to perform the qualifications for
Comparative 2. However, Complainants also note that RMO 3 stated that FSIS determined
Comparative 2’s qualifications. In addition, Complainants cite the June 16, 2015 email from RMO
3a requesting RMO 1 (and RMO 5) determine qualifications for Complainants. Complainants also
state the February 2, 2017 email from RMO 5 also implies that RMO 1 was responsible for
qualifying Comparative 2. Complainants argue the Agency has provided conflicting accounts of
the hiring agency or person(s) responsible for determining Complainants’ and Comparative 2’s
qualifications. Further, Complainants note the Agency did not provide the qualifications
worksheets for the relevant candidates.
Complainants reiterated that they performed substantially equal work as Comparative 2, under
similar working conditions. Complainants note the Agency stated it accepted Complainants’
contention that the common core of tasks, which they performed, as program specialist staff were
similar to the tasks performed by Comparative 2. However, the Agency argued that Complainants
were given increased autonomy, responsibility, and job duties when they progressed to the GS-9
position and that they must have performed at the GS-7 level when they were hired. Complainants
argue this only compares the work Complainants performed over the time period to themselves
and not to the work performed by Comparative 2.
Complainants stated as GS-7 employees, their duties included, but were not limited to, reviewing
budgets, issuing policy clarifications, managing program data, conducting and writing
management evaluations and running program-based meetings. Complainants stated that during
their first year of service they acted as team leads for their respective team leads’ absences,
participated in national workgroups, and were given duties above their grade level. Complainants
noted when Comparative 2 joined the Agency, Complainant 1 trained him in many of his assigned
tasks. Complainants claimed that the increased autonomy, job responsibility, and duties they
performed as they progressed to the GS-9 level were not consistent with that of Comparative 2 at
the GS-9 level who performed less work and with more supervision as a first-year employee.
0120181052, et al.
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Complainants also claim their right to confidentiality was violated during the ADR process with
inappropriate and unnecessary email copies. Complainants also state the Agency failed to hold
the mediation sessions within the 90-day deadlines. Complainants claim the Agency dismissed
these violations as a “spin-off” complaint on April 17, 2017, but only informed Complainants upon
request.
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”).
Upon review, we find the record unclear as to who made the qualification determinations for
Complainants and Comparative 2. As discussed earlier, there is conflicting accounts regarding
whether FSIS was involved in conducting the qualification determination for Comparative 2. Also,
it is unclear if FSIS did not make the qualification determination regarding Comparative 2, whether
RMO 1 or another individual was responsible for Comparative 2’s qualification determination. In
addition, the record indicates that Person X, Y, and Person Z were involved in performing
qualification determinations on some of the Complainants. However, no affidavits are included
from these individuals. Moreover, the record indicates that worksheets were created during the
qualification determination process; however, the record does not contain such qualification
determination worksheets for Complainants or Comparative 2. Upon review, we find the record
requires further development before a determination can be made as to whether the Agency
subjected Complainants to disparate treatment on the basis of their sex.
Additionally, regarding claim (2), we also find the record to be inadequately developed. We find
the record is unclear as to the actual duties performed by Comparative 2 during the relevant time.
Specifically, we find the Agency failed to obtain an affidavit from the first line supervisor of
Comparative 2 or any other Agency employee with knowledge of the actual work performed by
Comparative 2. Moreover, we note that while Complainants admitted that they performed work
with more autonomy and responsibility when they were subsequently promoted to the GS-9 level,
we find this is not relevant to the actual duties and responsibilities they held while they worked in
the position of Program Specialist, at the GS-7 level. On remand, the Agency shall gather
information on the work performed by Comparative 2 in terms of the skill, effort, and
responsibility held when he was hired as a Program Specialist, GS-9.
Regarding the claims the Agency dismissed as spin-off complaints, we note Complainants do not
challenge the Agency’s dismissal of those claims. However, we find the record does not indicate
the actions the Agency took regarding Complainant’s concerns.
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On remand, the Agency shall supplement the record indicating what actions, if any the Agency
took regarding Complainants’ allegations of the improper processing of their complaints.
CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination is VACATED and the
complaints are REMANDED to the Agency for further processing.
ORDER
Within 60 days of the date this decision is issued, the Agency shall take the following actions:
1. The Agency shall provide relevant documentation to clarify who made the qualification
determinations for Complainants and Comparative 2. Specifically, the Agency shall obtain
affidavits from Person X, Person Y, and Person Z and any other individuals who were
involved in performing qualification determinations on Complainants or Comparative 2.
Additionally, the Agency shall provide qualification determination worksheets for
Complainants and Comparative 2.
2. The Agency shall provide relevant documentation to indicate the actual duties performed
by Comparative 2 during the relevant time including the skill, effort, and responsibility
held when he was hired as a GS-9, Program Specialist. Specifically, the Agency shall
obtain an affidavit from the first line supervisor of Comparative 2 or any other Agency
employee with knowledge of the actual work performed by Comparative 2 when he was
hired as a GS-9, Program Specialist.
3. The Agency shall provide to Complainants a copy of all the materials placed into the record
pursuant to this Order.
4. The Agency shall place into the record evidence showing what actions, if any, were taken
due to Complainants’ claims of improper complaint processing.
5. The Agency shall issue a new final decision on the merits of Complainants’ complaints.
6. A copy of the additional evidence obtained pursuant to this Order and a copy of the new
final decision shall be sent to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
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See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.
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.
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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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision. In the alternative, you may file a civil action after one hundred and eighty (180)
calendar days of the date you filed your complaint with the Agency, or filed your appeal with the
Commission. 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. 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.
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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
September 10, 2019
Date
