0120142184
12-12-2014
Complainant v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Complainant
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120142184
Agency No. 9L4W13004
DECISION
Complainant timely filed an appeal from the Agency's final decision 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly found that Complainant failed to establish that it violated the Equal Pay Act (EPA) as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Litigation Attorney with the Air Force Legal Operations Agency (AFLOA) at the Agency's Joint Base Andrews in Maryland. Report of Investigation (ROI), at 16. Effective March 17, 2008, Complainant received an excepted service appointment under the National Security Personnel System (NSPS). However, on October 28, 2009, the NSPS was repealed by the National Defense Authorization Act for Fiscal Year 2010; therefore, the Agency converted Complainant to the General Schedule (GS) at the GS-14 grade-level effective July 2010. Id. at 63, 482. Complainant felt that he should have instead been converted to the GS-15 grade-level, and thereafter filed an appeal with the Merit Systems Protections Board (MSPB). Id. The MSPB dismissed Complainant's appeal, finding that it lacked jurisdiction. Id. at 226-36.
The record reflects that, on October 10, 2012, Complainant became aware that his coworker (female), who also was appointed as an Attorney under the NSPS, was converted to the GS-14 level as well. However, unlike Complainant, the Agency settled the coworker's MSPB appeal, agreeing to pay the coworker at the GS-15 level. Id. at 63. According to Complainant, both he and the coworker worked under the same position description (PD) as Senior Litigation Attorneys.
On January 24, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of sex (male) when on August 31, 2012, his coworker (female) was paid at a higher grade (GS-15) than he (GS-14) despite having identical PDs. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Specifically, the Agency found that Complainant's first-level Supervisor (S1) established that the difference in pay between the salaries was based on factors other than sex. The Agency noted that, although both the coworker and Complainant worked under the same PDs, the coworker had always been paid more. The Agency noted that Complainant's basic pay upon his initial appointment was $104,930.00, plus a local market supplement, for a total salary of $129,850.00. The Agency noted that Complainant received general pay adjustments and regular performance pay increases, bringing his total salary to $139,450.00 per year. The Agency indicated that Complainant's salary offer was based on his credentials as a Judge Advocate General (JAG), his extensive experience in federal-sector employment litigation, federal court practice, and his rank of Major in the Air Force.
The Agency noted, in comparison, that the coworker's salary upon her initial appointment was $111,700.00 with a market supplement for a total salary of $135,034.00. The Agency noted that the coworker received general pay adjustments, bringing her total salary to $145,819.00. The Agency noted that the coworker had been working as a Trial Attorney, GS-15, at the Department of Justice immediately before her appointment. The Agency stated that the coworker's offer was based on her master of law degree, Department of Justice experience, prior experiences with the Agency as the Chief of the Employment Litigation Branch, Chief of the Air Force alternative dispute resolution program, and her rank of Lieutenant Colonel.
The Agency explained that, after reviewing MSPB case precedent, it decided to settle the coworker's case but not Complainant's, because the coworker had previously been appointed to a GS-15 position with the Department of Justice prior to her conversion to the GS-14 level. The Agency explained that Complainant had never previously worked under the General Schedule, and therefore it did not have the authority to give Complainant the GS-15 salary as requested. The Agency found that sex-neutral factors were considered when management set Complainant's and the coworker's salaries. The Agency found that Complainant's and the coworker's conversion from the NSPS to the GS level were based on sex-neutral factors as well.
CONTENTIONS ON APPEAL
Complainant has not filed a brief on appeal. The Agency requests that we affirm its final decision.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the
ANALYSIS AND FINDINGS
Equal Pay Act
The U.S. Supreme Court articulated the requirements for establishing a prima facie case of discrimination under the Equal Protection Act (EPA) in Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). To establish a prima facie case of a violation of the EPA, Complainant must show that he received less pay than a female employee 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 (Sep. 12, 2000); see also 29 C.F.R. � 1620.14(a). 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)).
Here, the Agency correctly found that Complainant established a prima facie case of discrimination under the EPA. Once Complainant has met his burden of establishing a prima facie case, the Agency 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; Kouba v. Allstate Insurance Co., 691 F. 2d 873 (9th Cir. 1982).
Following a review of the record, we find that the pay difference can be justified under prong (4), a differential based on any factor other than sex. As the Agency explained, the record reflects that, upon being appointed to their positions, Complainant and the coworker possessed different education and experience, and thus received different salaries. There is no dispute that the coworker, like Complainant, was initially converted from the NSPS to the GS-14 grade level. We note that the coworker was only converted to the GS-15 grade level after S1 decided to settle her MSPB appeal. Although Complainant's MSPB appeal was not settled as well, there is no dispute that the coworker had a civilian service record at the GS-15 grade- level prior to her conversion to the NSPS, and Complainant had no such record. ROI, at 64. As a result, we find that the Agency has established that the pay differential was based on a factor other than sex.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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
December 12, 2014
Date
2
0120142184
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120142184