Beverly A. Schoch, Complainant,v.Department of Commerce Agency.

Equal Employment Opportunity CommissionSep 25, 2002
01A13876 (E.E.O.C. Sep. 25, 2002)

01A13876

09-25-2002

Beverly A. Schoch, Complainant, v. Department of Commerce Agency.


Beverly A. Schoch v. Department of Commerce

01A13876

September 25, 2002

.

Beverly A. Schoch,

Complainant,

v.

Department of Commerce

Agency.

Appeal No. 01A13876

Agency No. 97-51-0390

DECISION

INTRODUCTION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful 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 of 1963 (EPA),

as amended, 29 U.S.C. � 206(d) et seq. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. For the following reasons, the Commission

AFFIRMS the agency's final decision.

BACKGROUND

The record reveals that during the relevant time, complainant was

employed as a Printing Specialist, GS-1654-12, at the agency's Electronic

Publishing/Mail Division, Office of Administrative Operations, Washington,

D.C. Complainant sought EEO counseling and subsequently filed a formal

complaint on January 22, 1998, alleging that she was discriminated against

on the basis of sex (female) when the Office of Human Resources Management

(OHRM) refused to approve her promotion to GS-13 by accretion of duties,

but approved the promotions of two males who perform duties substantially

similar to complainant's.

Complainant's supervisor (S1) initiated a request to promote complainant

to Supervisory Printing Specialist, GS-13. Approximately three years

later, complainant was promoted. Complainant attributed the delay

to sex discrimination, as well as gross ineffectiveness and lack of

service by OHRM. Complainant also alleged that a male co-worker (CW1)

was promoted to Printing Specialist, GS-13, and another male co-worker

(CW2) was promoted to Visual Information Specialist, GS-13, and that

complainant's responsibilities exceeded the co-workers' duties.

OHRM personnel testified that S1's initial promotion memorandum

and subsequent submissions of position descriptions, which sought

complainant's promotion to a position with supervisory responsibility,

did not support a GS-13 classification, and that an accretion-of-duties

promotion from a non-supervisory to a supervisory position was not

permitted under the agency's Merit Assignment Plan (MAP).<1> Concerning

the Printing Specialist, GS-13, position, OHRM personnel testified that

CW1's position was not a supervisory position. Concerning the Visual

Information Specialist, GS-13, position, OHRM personnel testified that the

position was a newly created position, and CW2 competed for the position.

At the conclusion of the investigation, complainant was informed of

her right to request a hearing before an EEOC Administrative Judge or

alternatively, to receive a final decision by the agency. Complainant

requested that the agency issue a final decision.

In its FAD, the agency concluded that complainant's EPA claim,

as it related to CW2's position, did not establish a prima facie

violation because the position required different skills, was open

to competition, and that complainant did not apply for the position.

Concerning complainant's EPA claim, as it related to CW1's position, the

agency concluded that complainant had established a prima facie violation

of the EPA, but that the agency had established an affirmative defense.

With respect to complainant's claims under Title VII, the FAD concluded

that concerning the Visual Information Specialist position, complainant

failed to establish a prima facie case of discrimination because she had

not applied for the position, or shown that she was qualified for the

position. Concerning CW1's position, the FAD determined that complainant

had established a prima facie case of discrimination, but that the agency

articulated legitimate, nondiscriminatory reasons for its action, and

that complainant failed to provided sufficient evidence of pretext.

CONTENTIONS ON APPEAL

On appeal, complainant contends that it should not have taken ten

months to find out that one cannot accrete to a supervisory position;

that OHRM is supposed to be a service organization, and was not in her

case; and that it should not have taken years to resolve her promotion.

The agency requests that we affirm its FAD.

ANALYSIS AND FINDINGS

Title VII

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802- 803 (1973), and its progeny. Regarding

her claim of sex discrimination as it relates to CW2's position, we agree

with the FAD that complainant failed to establish a prima facie case.

Complainant did not demonstrate that she had applied for the position, or

that she was qualified to hold the position. Concerning CW1's position,

we find that the agency articulated a legitimate, nondiscriminatory

reason for its action, i.e., S1 was seeking a promotion for complainant

to a supervisory position which required compliance with MAP, and that

delay in processing complainant's promotion was also caused by an agency

organizational review. The burden therefore shifts to complainant to

prove, by a preponderance of the evidence, that such legitimate reasons

are a pretext for discrimination. In an effort to demonstrate pretext,

complainant argues that OHRM is a service organization and should not

have taken so long to complete her promotion, and therefore its delay

was due to discrimination. As conceded in the FAD, and as indicated

throughout the record by complainant and others, the OHRM did not

provide complainant with prompt, quality service, and was ineffective.

However, being ineffective does not establish discrimination based on sex.

We find that complainant has failed to establish, by a preponderance of

the evidence, that the agency's articulated reasons for its actions were

a pretext for discrimination.

Equal Pay Act

We note that claims of wage discrimination based on sex can also be

analyzed under the EPA. The EPA was enacted to remedy the problem of

sex-based wage discrimination. In essence, it requires that employees

doing equal work should be paid equal wages, regardless of sex.

To establish a violation of the EPA, complainant must show that 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. Arnold v. Department

of Treasury, EEOC Appeal No. 01960490 (July 28, 1998). Once complainant

has met this burden, an employer may avoid liability only if it can prove

that the pay difference is justified under one of the four affirmative

defenses set forth in the EPA, namely: (1) a seniority system; (2) a

merit system; (3) a system which measures earnings by quantity or quality

of production of work (also referred to as an incentive or piecework

system); or (4) a differential based on any other fact other than sex.

Corning Glass Works, 417 U.S. at 196-97. 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).

Skill includes such things as "experience, training, education, and

ability." 29 C.F.R. � 1620.15(a).

We find that the record supports the agency's assertion that CW2's

position is not comparable to complainant's because it required multimedia

graphic design skills, e.g., graphics design, visual presentation,

graphics production, which were not required for complainant's position.

CW2's position was a new position; it was in a different occupational

series with different duties; and it was competitively advertised.

Further, we find that complainant failed to provide competent evidence

specifically comparing the skill between her job and CW2's. Also,

CW2's promotion to a GS-13 position was effected through the competitive

process.

The FAD conceded that complainant had established a prima facie case of

an EPA violation as to CW1's position. Turning therefore to the agency

assertion of an affirmative defense, we find that the agency has sustained

its defense under the EPA. The record reflects that OHRM advised that

complainant could not be promoted from a non-supervisory position to a

supervisory position by accretion; and that such a promotion would have

to be published and be subject to competition. We find that this defense

is in accordance with the agency's MAP, a merit system. Accordingly,

we find that the agency has met its burden of establishing a valid

affirmative defense. Based on the foregoing, we find that complainant

failed to show that the EPA was violated.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed 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 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 (S0900)

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.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0900)

You are authorized under section 16(b) of the Fair Labor Standards Act

(29 U.S.C. � 216(b)) to file a civil action in a court of competent

jurisdiction within two years or, if the violation is willful, three years

of the date of the alleged violation of the Equal Pay Act regardless of

whether you have pursued any administrative complaint processing. The

filing of the civil action will terminate the administrative processing

of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 25, 2002

Date

1 The MAP provides that �In no instance may a career promotion from a

non-supervisory position to a supervisory position be based on accretion

of duties,� thereby requiring competitive procedures including advertising

the position. Complainant was selected for the position after competitive

advertising.