Cindy B. Waller, Complainant,v.Mary E. Peters, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionFeb 27, 2007
0120051127 (E.E.O.C. Feb. 27, 2007)

0120051127

02-27-2007

Cindy B. Waller, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.


Cindy B. Waller,

Complainant,

v.

Mary E. Peters,

Secretary,

Department of Transportation,

Agency.

Appeal No. 0120051127

Hearing No. 210-2003-6111X

Agency No. 4-02-4090

DECISION1

INTRODUCTION

On November 3, 2004, complainant filed an appeal from the agency's October

1, 2004, final order concerning her equal employment opportunity (EEO)

complaint 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 of 1963 (EPA), as amended, 29 U.S.C. �

206(d) et seq. The appeal is deemed timely and is decided pursuant

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

affirms the agency's final order.

ISSUES PRESENTED

The issues presented herein are whether the agency discriminated against

complainant on the bases of race (African-American), sex (female), and

in reprisal for prior EEO activity (complaints filed in February 1996

and August 2000) when:

(1) on a continuous basis she was denied equal pay from March 30,

2000 to the present;

(2) she was denied a temporary detail and not selected for a temporary

noncompetitive position and an announced competitive temporary position

as a Management and Program Analyst on or about November 2001; and

(3) she was given a desk audit and subjected to a hostile work

environment when she was assigned to a supervisor (S-1), who had

previously supervised her work.

BACKGROUND

During the relevant time, complainant worked as Personnel Management

Specialist (PMS), GS-201-11(G), at the agency's Chicago Air Route Traffic

Control Center in Chicago, Illinois. The agency permanently promoted her

to said position on January 17, 1999. From approximately November 1996

through January 2000, prior to receiving her PMS position, complainant was

supervised by S-1, the Support Manager-Resource Manager.2 Thereafter,

two managers supervised complainant intermittently from January 2000

through July 2000. In July 2000, one of the two identified mangers

(S-2) became complainant's permanent supervisor from July 2000 through

December 30, 2001. On January 7, 2002, S-1 again was assigned to

supervise complainant.

The record reveals that, in March 2000, the work in the Personnel Office

was divided such that each employee was assigned to a particular area.

Complainant was responsible for Human Resources work; a coworker

(CW-1), Management and Program Analyst, GS-12, was responsible for

Human Resources and Special Projects; and another coworker (CW-2),

PMS, GS-12, was responsible for Labor Relations and Human Resources.

Complainant believed that she performed work at the GS-12 position and

identified CW-1 and CW-2 as her comparators.

With respect to CW-1, the record reflects that he worked as a Supervisory

PMS, GS-12, until November 1996 when a national reorganization eliminated

and streamlined supervisory positions. Due to agency policy, CW-1 became

a saved-grade, saved-pay PMS, GS-12, and he performed a combination

of personnel functions and non-personnel related special assignments.

In June 1999, the agency reassigned CW-1 to the position of Management

and Program Analyst, GS-12. His duties included Human Resources and

Special Projects duties. As part of his Special Projects duties,

CW-1 developed a conduct and discipline manual for use within Human

Resources and for management; conducted training session on the conduct

and discipline manual for supervisory personnel; developed flow charts

for the accountability board, conduct and discipline actions, and model

work environment actions; and participated in the Tiger team, which,

among other things, investigated and analyzed causes for the increase in

operational errors within the facility. As part of his Human Resources

duties, he performed investigations for EEO infractions and disciplinary

issues, among other things. Finally, under position management, he

tracked positions and personnel assigned against those positions in

the facility.

With respect to CW-2, his position received an upgrade in March of 2000.

From April 2000 until November 2001, his primary responsibilities

consisted of Labor Relations duties and EEO functions. CW-2 estimated

that approximately 75-80% of his time involved Labor Relations. In

this regard, the record reflects that he served as the Air Traffic

Manager's principal advisor on Labor Relations matters. As such,

he attended meetings with unions; interacted with managers regarding

a range of Labor Relations issues, grievances, and other complaint

issues that are raised by the unions; and negotiated with the unions.

With respect to his EEO functions, CW-2 investigated EEO complaints from

management's perspective, and independently decided who to investigate,

how to perform the investigation, and what questions to ask.

In May or June of 2001, complainant met with the Air Traffic Division

Manager (Manager) to discuss her desire to be promoted to a GS-12 level.

The Manager indicated a willingness to conduct a desk audit. Due to

various circumstances, including the events of September 11, 2001, and

a transfer of desk audit duties, the agency did not commence any action

on the audit until December 10, 2001. The agency provided complainant

with thirteen questions for the desk audit, and complainant completed

her submission on February 21 and 22, 2002. Thereafter, complainant was

informed of a hiring freeze which went into effect on January 18, 2002.

In April 2002, complainant was provided with a set of follow-up questions

regarding her desk audit, which she did not complete until September 2002.

The agency reviewed the information complainant provided and determined

the level of her work based on the types of duties performed, percentage

of time they were performed, and their regularity. On November 15, 2002,

the Manager, Human Resources Services, issued her recommendation that

complainant's position remain a Career Level 2, Pay Band G, that is,

a GS-11.

The record further reveals that, in October 2001, CW-1 was activated

as a reservist and required to participate in military duty. Although

management discussed temporarily promoting complainant to CW-1's position,

the decision was made that complainant's desk audit should be completed

before temporarily promoting her. CW-1's Human Resources duties were

divided between three employees, including complainant, CW-2, and a third

coworker (CW-3). CW-1's conduct and discipline duties were performed

by complainant and CW-2 on an alternating basis. Neither complainant

nor CW-2 received CW-1's Special Project duties. Instead, CW-3 became

responsible for tracking and reporting functions, and the managers

assumed the remaining Special Projects duties as needed.

On November 7, 2001, a competitive bid was opened for a Temporary

Management and Program Analysis, 0343 FG-G or H, position.3 Complainant

and two other employees bid for the position and were considered best

qualified. However, the agency made no selection for the temporary

position.

On December 14, 2001, complainant filed an EEO complaint alleging that

she was discriminated against as stated above. At the conclusion of the

agency's investigation, complainant was provided with a copy of the report

of investigation and notice of her right to request a hearing before an

EEOC Administrative Judge (AJ). Complainant timely requested a hearing,

and the AJ held a hearing on November 5, 6, and 7, 2003.

Administrative Judge's Decision

On September 30, 2004, the AJ issued a thorough decision, finding no

discrimination. With respect to complainant's claim regarding equal

pay, the AJ found that complainant failed to establish a prima facie

case of race or sex discrimination under a disparate treatment theory

because neither CW-1, nor CW-2, was similarly situated to complainant.

AJ Decision, at 14. She noted their duties in reaching this conclusion.

The AJ further determined that complainant failed to establish a prima

facie case of reprisal in that she failed to show that S-2 was aware of

her prior EEO activity during the relevant period. Id., at 15. As to

whether complainant established a violation of the EPA, the AJ found

that complainant failed to show that she performed the same duties as

CW-1 and CW-2, or that the duties she performed required the same level

of skill and responsibility as that of her comparators. Id., at 15-17.

Moreover, the AJ noted that complainant failed to show that she performed

work at the GS-12 level after CW-1 went on military duty. Id., at 20.

Although complainant argued that labor law expertise should not be given

more weight, and that Special Projects duties were not mentioned in CW-1's

position description, the AJ found that complainant failed to prove

pretext inasmuch as grade levels increased agency-wide for individuals

performing Labor Relations functions, and the focus under the EPA is not

on position descriptions, but rather on work performed. Id., at 23-24.

As to complainant's claim that the agency discriminated against her when

it failed to promote her, the AJ first found that complainant failed

to state a claim upon which relief could be granted since no selection

was made for the position. Id., at 22. Nonetheless, the AJ went on

to determine that the agency articulated a legitimate nondiscriminatory

reason for not selecting complainant. Id. Specifically, complainant was

expected to complete her desk audit shortly, and a promotion would create

difficulty in clearly separating her usual duties from newly acquired

duties that were assigned due to the temporary promotion. Moreover, with

a limited staff, an employee would be unable to accomplish CW-1's work,

especially as related to his Special Projects duties. Id., at 22-23.

Further, despite complainant's argument that the hiring freeze should

not have prevented her temporary promotion, the AJ determined that the

agency's decision not to promote complainant focused on her completing

her desk audit and not on the hiring freeze. Id., at 24. Although

complainant argued that a written desk audit as compared to an on-site

desk audit constituted harassment, the AJ found that complainant failed

to show that the agency's decision was due to a discriminatory motive.

Id.

Considering complainant's claim that she was harassed when S-1 was

reassigned as her supervisor, the AJ found that complainant failed to

show that the act of S-1 being assigned as her supervisor, or acting

as her supervisor, rose to the level of a hostile work environment.

Id., at 20. The AJ further analyzed whether complainant's desk audit

was conducted in a discriminatory manner and concluded that it was

not. Id., at 21. She found that the agency articulated a legitimate

nondiscriminatory reason for requiring complainant to complete the audit,

namely it was performed to settle a pending EEO complaint, would provide a

"clear picture" of her responsibilities, and would determine the proper

classification of her job responsibilities. Id., at 22. The AJ noted

that, although complainant maintained that the agency conducted the

desk audit in an effort to harass her, she failed to provide evidence

and resorted to mere speculation. Id.

The agency subsequently issued a final order adopting the AJ's finding

that complainant failed to prove that she was subjected to discrimination

as alleged.

Contentions on Appeal

Complainant filed the subject appeal on November 3, 2004, and requested

an extension of time to file her brief in support of appeal. On October

10, 2004, the Commission granted complainant an extension of time until

January 17, 2005. Apparently unaware that the Commission had granted

an extension, the agency filed its opposition statement to appeal on

December 30, 2004.

On January 17, 2005, complainant filed her brief in support of appeal.

Therein, she alleges, among other things, that the AJ erred in: (1)

defining the issues for hearing;4 (2) finding that she failed to prove

a prima facie case of race or sex discrimination under Title VII and the

EPA; and (3) finding that she failed to establish a claim of harassment

when she was directed to complete a desk audit, denied noncompetitive

and competitive temporary promotions, denied a detail, denied duties

previously performed by CW-1, and S-1 was assigned as her supervisor.

On February 16, 2005, the agency filed a motion to strike complainant's

late filed brief in support of her appeal, and in the alternative, a

motion for an extension of time within which to file the agency's response

to complainant's brief. The agency stated that it received complainant's

brief in support of her appeal on January 17, 2005. On March 17, 2005,

the agency filed its second brief in opposition to complainant's appeal.5

Therein, the agency addresses each of complainant's arguments.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. First, complainant asserts

that she was harmed because the AJ who prepared the written decision is

not the same AJ who conducted the hearing. We find, however, that since

the AJ who issued the decision did not make any credibility findings,

complainant cannot show how she was harmed. Complainant further asserts

that the AJ failed to properly frame the claim inasmuch as she did not

consider complainant's June 2, 2003 submission, requesting that her

complaint include a continuing violation and hostile work environment

theory. After carefully reviewing the record, we find that the AJ's

identification of the claims was appropriate.

To the extent that complainant claims that the AJ erred in finding that

she did not establish a prima facie case of discrimination with respect

to claim 1, we find that AJ correctly found that complainant was not

similarly situated to CW-1 and CW-2. In arriving at this conclusion,

we focus on the duties performed by complainant and her two comparators.

CW-1 performed Human Resource duties and worked on Special Projects;

CW-2 performed work in labor law, and the AJ specifically found that the

agency considered this higher graded work; but, in contrast, complainant

performed solely Human Resource duties. Although complainant asserts

that she performed many, if not all, of CW-1's duties when he departed for

military duty, she cannot show that she performed the same type of work

on Special Projects with same level of skill and responsibility as CW-1.

Complainant also maintains that she performed substantially similar

duties, and she makes light of CW-1's Special Projects. A review of

these Special Projects substantively, however, reflects that CW-1's work

products required a great deal of skill and responsibility which cannot

be discounted. Therefore, we find that the AJ correctly concluded that

complainant failed to establish a prima facie case of discrimination

with respect to claim 1.

With respect to complainant's claim that she established a claim of

harassment, we find that she has not established that any of the agency's

actions were motivated by discriminatory animus based upon her protected

groups. Moreover, we find that the incidents identified by complainant

were insufficiently severe or pervasive so as to rise to the level

of harassment. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).

In sum, complainant has failed to present evidence that any of the

agency's actions were motivated by discriminatory animus or that a

violation of the EPA has occurred. Based upon substantial evidence in

the record, we also discern no basis to disturb the AJ's finding that

complainant failed to prove she was discriminated against based upon race,

sex, and/or in reprisal.

CONCLUSION

Accordingly, after a careful review of the record, the Commission affirms

the agency's final decision.

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.

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

_____2/27/07_____________

Date

1 Due to a new data system, this case has been redesignated with the

above referenced appeal number.

2 Complainant named S-1 in her August 2000 complaint.

3 Under the agency's Pay Band system, a Level G is equivalent to a GS-11

and a Level H is equivalent to a GS-12.

4 Complainant explains that one AJ conducted the hearing, while another

AJ issued the decision. According to complainant, the AJ writing

the decision failed to make observations at the hearing and consider

outstanding matters noted in the transcript.

5 The Commission finds that complainant timely filed her January 17,

2005 brief, since she was granted an extension until the aforesaid date.

Moreover, since the agency was unaware of the Commission's grant of an

extension, we find the agency's March 17, 2005 brief timely as well.

All arguments and evidence presented by both parties, even if not

specifically addressed in this decision, have been considered.

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0120051127

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120051127