01992162
10-17-2001
Cheryl R. Bryant, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Cheryl R. Bryant v. Department of the Navy
01992162
October 17, 2001
.
Cheryl R. Bryant,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01992162
Agency No. 97-00023-001
DECISION
BACKGROUND
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against on the bases of her sex, race (African-American), color (black),
and in reprisal for previous EEO activity protected under Title VII when
she was not promoted to the GS-13 level or provided equal compensation
for the work she performed.<1> Given the issues raised by complainant,
we construe the complaint to also allege a violation of the Equal Pay Act
(EPA) of 1963, as amended, 29 U.S.C. � 206(d) et seq.
The record reveals that during the relevant time, complainant was employed
as a Supply Management Specialist, GS-12, at the agency's Supply Systems
Command in Arlington, Virginia.
Complainant began her tenure with the agency in 1989 directly out of
college. She started in the Logistics Career Intern Program as a GS-5.
This position had a full performance level of GS-11. Complainant reached
this level in 1992. In 1994, complainant was promoted to the GS-12 level.
Complainant contends that this promotion came only after numerous requests
and an appeal to the Activity Director of her command.
Prior to the 1994 promotion, in 1993, complainant informed management that
she was being sexually harassed by her supervisor (S1). S1 was issued
a letter of reprimand and complainant was reassigned at her request.
Complainant requested a promotion to the GS-13 level beginning in January
1995 and continuing through July 1996. In so requesting, complainant
outlined that she was doing the work of a GS-13 already and therefore
deserved a pay raise. She also noted that while she remained a GS-12,
everyone else in her office and division were at the GS-13 level.
The agency allegedly told complainant that, while she was doing the
work of a GS-13, she was doing so with supervision while the others
were much more independent workers. Further, management stated that
complainant needed to develop her analytical skills, increase individual
responsibility, and display a degree of supervisory independence.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on May 27, 1997.
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.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of race, color or sex discrimination because complainant
did not present evidence that the responsible management official
chose not to award her a promotion based on a discriminatory animus.
The agency further concluded that the similarly situated employees,
two White males, proffered by complainant as an example of her disparate
treatment were not, in fact, similarly situated as they worked under a
different supervisor.
The agency also concluded in the FAD that complainant failed to establish
a prima facie case of reprisal because she could not establish a causal
connection between her protected activity, that of complaining about
her sexually harassing supervisor in 1993, and not receiving a promotion
two years later.
On appeal, complainant makes several contentions. First, she states
that prior to her request for a promotion to the GS-13 level, she had
to fight for a promotion to the GS-12 level. Specifically, complainant
states that she had to make the request for the promotion several times
and also had to show proof of her work. In contrast, complainant argues,
other graduates of the intern program she graduated from did not have to
jump through the same hoops but were promoted to GS-12 automatically.
Complainant further contends that while she may require supervision,
she is not the only one and she requires no more than anyone else in her
department. Complainant goes on to give an example of an independent
and seemingly significant project that she headed and managed from top
to bottom to show that she did, in fact, perform at the GS-13 level
without the supervision alleged by the agency. Finally, complainant
presents evidence of the awards and commendations she has received in
her position. The agency requests that we affirm its FAD.
ANALYSIS
Equal Pay Act
We note that neither the FAD nor the investigative file adequately
addresses the question raised by complainant. Namely, that she did not
require more supervision than the other members of her team. Moreover,
there is no clear explanation of what duties complainant is responsible
for versus her higher-graded colleagues.
The EPA was enacted to remedy the problem of sex-based wage
discrimination. Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974).
In essence, it requires that "employees doing equal work should be paid
equal wages, regardless of sex." Goodrich v. International Brotherhood
of Electrical Workers, 815 F.2d 1519, 1523 (D.C. Cir. 1987). The EPA
mandates that an employer not discriminate "within any establishment in
which such employees are employed, between employees on the basis of sex
by paying wages to employees in such establishment at a rate less than
the rate at which he pays wages to employees of the opposite sex in such
establishment for equal work on jobs the performance of which requires
equal skill, effort, and responsibility, and which are performed under
similar working conditions..." 29 U.S.C. �206(d)(1).
The Supreme Court articulated the requirements for establishing a prima
facie case of discrimination under the EPA in Corning Glass Works.
To establish a violation of the EPA, a complainant must show that she
or he received less pay than an individual of the opposite gender for
equal work, requiring equal skill, effort and responsibility, under
similar working conditions within the same establishment. Id. at 195;
Arnold v. Department of the Treasury, EEOC Appeal No. 01960490 (July
28, 1998). See also, 29 C.F.R. �1620.14(a). Once the 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 an incentive or piecework
system); or (4) a differential based on any other factor other than sex.
29 U.S.C. �206(d)(1); Corning Glass Works, 417 U.S. at 196-97.
The requirement of "equal work" does not mean that the jobs must be
identical, but only that they must be "substantially equal." Corning
Glass Works at 203, n. 24; Horner 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). The factors of skill, effort and responsibility
used to measure the equality of jobs are not precisely definable.
29 C.F.R. �1620.14(a). Skill includes such things as "experience,
training, education, and ability." 29 C.F.R. �1620.15. Effort addresses
"the amount of physical or mental exertion required to perform the job."
29 C.F.R. �1620.17. The terms "skill, effort and responsibility,"
however, "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).
Although insubstantial or minor differences do not render the equal pay
standard inapplicable, "substantial differences, such as those customarily
associated with differences in wage levels when the jobs are preformed
by persons of one sex only, will demonstrate an inequality as between
the jobs justifying differences in pay." Id.
An analysis of comparative skills and responsibilities is most problematic
when it involves executive or professional employees. B. Schlei &
P. Grossman, Employment Discrimination Law, p. 59 (2d ed. Supp. 1991).
The primary approach in determining the equality of jobs is an analysis
of overall job content. Angelo v. Bacharach Instrument Co., 555 F.2d
1164, 1173 (3rd Cir. 1977). Courts have looked to whether the jobs
share "a 'common core' of tasks, i.e., whether a significant portion
of the two jobs is identical." Fallon v. Illinois, 882 F.2d 1206, 1209
(7th Cir. 1989). In an EPA case, the focus is not on job descriptions
or titles, but on job requirements and performance. Simkins Finucan
v. Postal Rate Commission, EEOC Appeal No. 01914057 (May 20, 1993).
In that case, we found that a female attorney's job was not comparable
to those of higher paid male attorneys because we found that while
some of the job tasks were the same, there was a difference in the
level of the difficulty of assignments and the supervision required.
"The difficulty appellant experiences in handling more complex matters,
and the increased supervision she received, is relevant, therefore,
to a determination of whether her job was substantially equal to the
work of the male comparisons."
In light of the guiding principles and information and evidence required
to make a determination as to whether complainant has established a
violation of the EPA, we find that the record as it currently exists
is not sufficient. The agency is ordered to conduct a supplemental
investigation, bearing in mind the facts necessary to determine whether
there has been a violation of the EPA, with particular attention paid
to the duties performed by complainant and colleagues; whether such
work is substantially equal; what skill and effort complainant exerts
as compared to the male, GS-13s in her division; and what amount of
autonomy and responsibility complainant exhibits.
Age Discrimination in Employment Act
The purpose of this act is to �promote employment of older persons based
on their ability rather than age; to prohibit arbitrary age discrimination
in employment; to help employers and workers find ways of meeting
problems arising from the impact of age on employment.� 29 C.F.R. �
621(b). Complainant is not protected by the ADEA, being a person under
the age of forty.
CONCLUSION
Based on the foregoing, we hereby REVERSE and REMAND the final decision of
the agency. The agency is ordered to conduct a supplemental investigation
as noted above. Once complete, the agency should issue a new FAD,
addressing complainant's claims under both a Title VII analysis and
under an EPA analysis.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Conduct a supplemental investigation as explained in the decision.
Such investigation should be completed within one hundred and twenty
(120) days. Within thirty (30) days of completion of the supplemental
investigation, the agency shall issue a supplemental final decision
addressing the claims pursuant to the direction above.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. 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.
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 (R0900)
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.
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
October 17, 2001
__________________
Date
1 Complainant also alleged discrimination on the basis of age (date
of birth: 3/3/65) in violation of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Noting that
complainant was under age 40, the agency found no discrimination.
Inasmuch as complainant is not within the protection of the ADEA,
we will not address age as a basis.