0120103466
07-19-2012
Clara E. Murray, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.
Clara E. Murray,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120103466
Hearing No. 410-2010-00044X-LL
Agency No. HHSCDC00972009
DECISION
On August 21, 2010, Complainant filed an appeal from the Agency's July 8, 2010, 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Budget Analyst at the Agency's Centers for Disease Control and Prevention facility in Atlanta, Georgia.
On April 2, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On November 10, 2008, Complainant learned that a contract employee (CW1: White, male) was hired as a Financial Management Specialist, GS-12, at above minimum pay with a recruitment bonus, setting his annual salary higher than any budget analyst on the team; and
2. In December 2008, Complainant learned that her recent annual year-end cash award was less than the award she received the previous year even though she provided more support in 2008.
At the conclusion of the investigation, the Agency provided Complainant 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 following the hearing the AJ issued a decision on May 19, 2010. Specifically, with regard to claim 1, the AJ found that Complainant established a prima facie case under the EPA but that the Agency had shown that the discrepancy was justified as an effort to hire an outside employee and to match the base pay and benefits he received in his prior position outside the Federal Government. With regard to claim 2, the AJ found that Complainant established a prima facie case but that the Agency articulated a legitimate nondiscriminatory reason for its action, namely, that due to budget constraints less money was available for awards in 2008 than in the previous year. The AJ further found that Complainant failed to establish that the Agency's articulated reason was a pretext for discrimination. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant argues on appeal that CW1 previously worked for the Federal Government as a consultant and that "therefore under 5 USC 3109 it is not appropriate to use that salary to justify an advanced rate." Complainant's Appeal Brief. Complainant further argues that CW1 was paid more as a consultant than other African American consultants for the same company who had "more education and more experience in financial management" than did CW1. Complainant maintains that when African American consultants were hired by the Federal Government, they were forced to take pay cuts and were not granted "above minimum pay" while White consultants hired by the Federal Government were granted "above minimum pay." Complainant contends that she had more responsibility than CW1 but was paid less. Complainant also argues that the Financial Management Specialist position in question "is not a hard to fill position, which is a requirement under Title 5 for a recruitment bonus." Complainant next contends that CW1 does not meet the experience level needed to satisfy the requirements of his position because his experience as a consultant working with the Agency "would not have exposed him to the necessary experience to perform as a Financial Management Specialist in the Financial Services Branch." Complainant states that CW1 is the highest paid Financial Management Specialist "for a job he has never performed." With regard to the year-end cash award, Complainant argues that despite management's claim that there was less money available for awards in 2008 than there was in 2007, the facility "paid out cash awards of $259,750" in 2007 and just over a year later, it paid out cash awards of $385,750.
The Agency did not submit a brief on appeal.
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.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
EPA 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 Opportunity Commission, EEOC Appeal No. 01A02919 (September 12, 2000); see also 29 C.F.R. � 1620.14(a).
Once a Complainant has met the burden of establishing a prima facie case, an employer may avoid liability only if it can be proven 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 196-197; 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)).
Following a review of the record, we find that Complainant has not established a prima facie case of a violation under the EPA. The record shows that CW1 was hired as a GS 12, Step 10, while at the time of CW1's hiring, Complainant was a GS 13, Step 5. Hearing Transcript, p. 36. We take note that, according to the U.S Office of Personnel Management, the 2008 base salary for a GS 12, Step 10, was $75,025 per annum, while the 2008 base salary for a GS 13, Step 5, was $77,777 per annum. Complainant was therefore making $2,752 more than CW1, not less, and consequentially has not established a prima facie case. With regard to CW1's signing bonus, we do not view such a signing bonus to constitute part of CW1's wages. We note in this regard that pursuant to 29 C.F.R. � 1620.10, "[u]nder the EPA, the term "wages" generally includes all payments made to [or on behalf of] an employee as remuneration for employment." The signing bonus in this case, however, was not paid as remuneration for employment since CW1 was entitled to the payment even before he worked his first day of work. Furthermore, the signing bonus was not something Complainant could have been entitled to because she was not hired from outside the Federal Government but instead joined the Agency from another Federal Agency. We further find that Complainant does not state a claim under Title VII since she did not apply for the position CW1 applied for.
Lowered Cash Award
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. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination; i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
The prima facie inquiry may be dispensed with in this case, however, since the AJ found that the Agency articulated a legitimate and nondiscriminatory reason for the fact that Complainant's 2008 award was lower than her 2007 award. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 17 (1983). The Agency Deputy Director/Budget Officer (DD: White, male) testified during the hearing that "there were lower amounts available to go out in cash awards across the entire office." Hearing Transcript, p. 54. The burden thus returns to Complainant to demonstrate, by a preponderance of the evidence, that the Agency's reason was pretextual, that is, it was not the true reason or the action was influenced by legally impermissible criteria. Burdine, 450 U.S. at 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant maintains on appeal that, contrary to DD's testimony, "in December 2007 [the facility] paid out cash awards of $259,750 and in January 2009 [it] paid out cash awards of $385,750. More money was spent on cash awards not less." Complainant, however, has not submitted any evidence to support such a claim. Following a review of the record, Complainant has not met her burden of establishing, by a preponderance of the evidence, that the Agency's articulated reason for its action was a pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of establishing that discrimination occurred, and we AFFIRM the final order.
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
July 19, 2012
__________________
Date
2
0120103466
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103466