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.