0120112060
08-15-2012
Billy L. Key, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Billy L. Key,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112060
Hearing No. 532-2009-00166X
Agency No. 200J-0541-2009-102628
DECISION
On February 28, 2011, Complainant filed an appeal from the Agency's January 14, 2011, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
In January 2008, Complainant was hired by the Agency as a Patient Services Assistant, GS-5, Step 1, at the Agency's Outpatient Clinic facility in Youngstown, Ohio.
Thereafter, the Agency, applying its Highest Previous Rate protocol, adjusted his pay level to the GS-5, Step 2 level, retroactive to his date of hire. His pay level was adjusted again to GS-5, Step 5, after he gave additional information to the Office of Human Resources (OHR) concerning his prior work experience with the United States Postal Service. Complainant was given credit for his previous experience in customer relations and as a supervisor. As such, Complainant was given a GS-5, Step 5 salary.
In July 2008, Complainant was selected for a GS-6/7 Patient Relations Assistant position, and placed at the GS-6, step 4, level. Complainant asked that the Agency reconsider his previous GS-5 step level in order to qualify to be awarded his new position at the GS-7 level. The Agency declined to further adjust Complainant's original starting step level.
On March 10, 2009, Complainant learned that two female Patient Services Assistants (Comparator 1 and Comparator 2) were hired at the same time as he was and were placed at higher step levels. He found out that Comparator 1 and Comparator 2 were paid at the GS-5, Step 8, and GS-5, Step 9, levels respectively. Complainant believed that the he was being paid less than the female comparators in violation of the EPA.
On June 1, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of sex (male) when he was paid less than Comparator 1 and Comparator 2 for the same GS-5 position.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Both parties submitted motions for a decision without a hearing.
The AJ assigned to the case issued a decision without a hearing on January 4, 2011. The AJ noted that the Chief of OHR stated that all three employees were initially hired at the GS-5, Step 1 level. However, since all three had prior federal service, they received pay adjustments based on their prior work experience as it related to the patient services assistant position for which they were hired. An HR Specialist averred that Comparator 1 was given a Step 8 based on her work in a different series with a four year lapse of time since her prior federal service. As for Comparator 2, the HR Specialist noted it was based on her work in a different series but more recent work than Comparator 1, so she was given a Step 9 salary.
Based on the AJ's review of the record, she found that the Agency met its burden to show that Complainant was given a lower salary based on a factor other than sex. As such, the AJ found that Complainant failed to show that he was subjected to a violation of the EPA based on his sex.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
This appeal followed. On appeal, Complainant does not contest the fact that the AJ issued a decision without a hearing, but rather asserts that the evidence does not support the AJ's conclusion that no discrimination occurred. Complainant rejects the AJ's finding that he lacked prior work experience comparable to the two comparators. Complainant asserted that he was a Supervisor in Customer Service at the United States Postal Service where he was in charge of over 50 people. In addition, he indicated that he has four years of college credit.
ANALYSIS AND FINDINGS
As an initial matter, we note that neither party has challenged the AJ's decision to issue a decision without a hearing. Therefore, we will analyze this case based on the evidence of record gathered during the investigation of Complainant's claim.
The U.S. Supreme Court articulated the requirements for establishing a prima face case of discrimination under the EPA in Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). To establish a violation of the EPA, 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. Id. at 195; Sheppard v. Equal Employment Opp. Commission., EEOC Appeal No. 01A02919 (September 12, 2000); see also 29 C.F.R. � 1620.14(a).
Once Complainant has met the burden of establishing a prima facie case, an employer may avoid liability only if it can be 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 an incentive or piecework system); or (4) a differential based on any other factor other than sex. See 29 U.S.C. 206(d)(1); Corning Glass Works, 417 U.S. at 196-197; Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982). The requirement of "equal work" does not mean that the jobs must be identical, but only that they must be "substantially equal." Id. (citing Corning Glass Works, 417 U.S. at 203. N. 24; Homer v. Mary Institute, 613 F.2d 706, 714 (8th Cir. 1980); Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 449 (D.C. Cir. 1976)).
In this case, the undisputed evidence of record shows that Complainant has established a prima facie case of discrimination under the EPA. He, Comparator 1 and Comparator 2 were hired at the same time and at the same facility to work in the same position. While all were hired at the same grade level, Complainant was placed at a lower step than the two comparators (both female). This is sufficient to establish a prima facie case.
The burden now shifts to the Agency to avoid liability by proving that the pay difference was justified using one of the affirmative defenses discussed above. The AJ determined that the evidence supported a finding that the decision to assign Complainant to a lower step than his two comparators was based on a factor other than sex. Specifically, the AJ concluded that the Agency established that it assigned the steps based on the level of prior work experience of each of the three employees that was directly related to the Patient Services Assistant position.
We find that the evidence of record fully supports the AJ's conclusion that the Agency met its burden of showing that the difference in steps results from a factor other than sex. It is undisputed that the Agency applied its Highest Previous Rate protocol to all three employees and determined that the two comparators had more prior work experience than Complainant that directly related to the Patient Services Assistant position. The record contains affidavits from the relevant HR officials explaining how the determinations concerning prior experience were made, as well as documentary evidence of that prior experience. Complainant argues on appeal that the Agency did not properly credit him for all his related prior experience. However, even if the responsible Agency officials made mistakes in how they interpreted Complainant's prior experience, the record clearly shows that it was the application of the Highest Previous Rate protocol resulted in the different steps, not the gender of the employees. As such, the AJ correctly determined that the Agency has proven its affirmative defense that the difference in steps provided to the three employees resulted from a factor other than sex.
CONCLUSION
Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, we AFFIRM the Agency's final order fully implementing the AJ's decision in this matter.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 15, 2012
__________________
Date
2
0120112060
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120112060