Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency.

Equal Employment Opportunity Commission

Feb 7, 2013

0120113317 (E.E.O.C. Feb. 7, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Timothy F. Geithner,
Secretary,
Department of the Treasury
(Bureau of Engraving and Printing),
Agency.

Appeal No. 0120113317

Hearing No. 450-2008-00373X

Agency No. BEP-07-116-F

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s May 23, 2011 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. For the following reasons, the Commission
AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-12 Security
Specialist at the Agency’s Western Currency Facility in Fort Worth, Texas. In August 2005,
Complainant was temporarily detailed to the Bureau’s Drug Free Federal Workplace
Program/Continuity of Operations Program (DFFWP/COOP). In February 2006, the
temporary detail became a permanent assignment. In October 2006, the Bureau underwent a
re-organization, and Complainant was reassigned to the Physical Security Branch with a GS-13
Senior Security Specialist (CW1). CW1 was the only GS-13 Security Specialist in the Physical
Security Branch. CW1 was assigned to lead the COOP program, and Complainant was to
assist him. Additionally, Complainant was assigned to administer the drug testing program.
CW1 had previously worked to develop these programs, and Complainant was brought in as
junior member to assist.

In September 2007, CW1 was assigned to be the Acting Branch Manager and became
Complainant’s first-level supervisor. While acting as Branch Manager, CW1 retained COOP
0120113317

2
lead duties, and Complainant’s duties did not significantly change. In September 2008, CW1’s
acting detail assignment ended, and Complainant’s second-level supervisor (S2) assumed the
managerial responsibilities until a permanent Branch Manager was selected.

Complainant applied for the Branch Manager position in September 2008. A three-person
panel reviewed and rated the qualified applicants. The panel scored all of the qualified
applicants, combined their scores for each applicant, and then divided by three to reach a total
score for each applicant. All total scores were combined and divided by the number of
applicants to reach a cutoff score, which became 15. Only applicants who achieved the cutoff
score were included on the Certificate of Eligibles. Complainant’s score was 13 and she was
not included on the Certificate for consideration by S2. On or around October 31, 2008,
Complainant was informed that, although she was qualified for the position, she did not rank
highly enough to be referred to S2 for consideration. In December 2008, S2 chose the
selectee.

On January 17, 2008 (and amended on January 20, 2009), Complainant filed a formal
complaint alleging that the Agency discriminated against her on the bases of race/national
origin (Hispanic), sex (female), and in reprisal for prior protected EEO activity when:

1. Since February 19, 2006, Complainant was assigned to the DFFW/COOP and
compensated at the GS-12 level while a male co-worker (CW1) was compensated at
the GS-13 level for performing the same duties;

2. On or about August 18, 2007, she was not detailed to the position of Acting
Physical Security Branch Manager between August 18, 2007 and December 10,
2008;

3. On or about September 16, 2007, Complainant was required to assume duties within
the DFFW/COOP and compensated at the Grade 12 level while a co-worker
received compensation at the GS-13 level for performing the same duties; and

4. On or about December 10, 2008, she was not selected for the Physical Security
Branch Manager under Vacancy Announcement No. 2008-14-KDR.

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. The AJ granted
summary judgment as to claims (1), (2), and (4), held a hearing as to claim (3) on April 22 and
23, 2010, and issued a decision as to all claims on October 19, 2010.1

1 The AJ dismissed one claim as untimely and another claim as a spin-off complaint.
Complainant does not challenge these dismissals on appeal; therefore, the Commission declines
to address the matters in this decision.

0120113317

3
In her decision, the AJ initially assumed arguendo that Complainant had established a prima
facie case of discrimination and reprisal and determined that the Agency had articulated
legitimate, nondiscriminatory reasons for its actions. Specifically, as to her non-selection
claim, management affirmed that a three-member panel rated and ranked qualified applicants.
Only applicants who achieved the cutoff score of 15 were included on the Certificate of
Eligibles. Complainant received a score of 13 and as a result, her name was not included in
the Certificate.

In regard to her claim that she was denied detail assignments, S2 stated that CW1 was the only
Acting Physical Security Branch Manager between September 2007 and September 2008
because he was the highest-graded employee in the Branch. After CW1’s detail ended in
September 2008, S2 took over the management of the Branch until a candidate was selected to
fill the position permanently about three months later. S2 decided to not assign anyone else to
the acting position because doing so would delay the selection of a permanent Branch
Manager. Further, during CW1’s brief absences, Complainant and other GS-12 employees
were given the opportunity to act as Branch Manager.

Regarding her EPA claim, the AJ determined that the DFFWP/COOP unit at the Western
Currency Facility had long been run by the Deputy Program Manager (DM) with assistance
from CW1. It was determined that a junior member at the GS-12 level should be added to the
section and Complainant accepted a permanent transfer into the GS-12 position. The AJ
determined that Complainant was not performing equal work as CW1. More specifically, the
record showed that CW1 was the subject-matter expert in the section while Complainant was
fulfilling the junior employee role. CW1 was held to a higher level of standard of skill and
was rated differently on critical elements. Complainant was assigned to administer the
DFFWP which freed CW1 up to focus on developing the COOP program. Complainant’s
duties consisted of maintaining an established program; however, DM and CW1 had already
performed the higher-level work of establishing the program. Even when CW1 acted as
Complainant’s first-level supervisor, he continued to be responsible for the COOP program.

Complainant argued that because CW1 was given the temporary acting manager position, she
should have similarly been detailed to his GS-13 position in the DFFWP/COOP. However,
the AJ determined that Complainant’s testimony concerning her COOP tasks did not show that
she performed at the same level as CW1 or that she bore the same level of responsibility over
that program that CW1 had always maintained, even through his acting manager detail. Thus,
the AJ concluded that Complainant’s EPA claim for the period of February 2006 through
September 2008 failed, as the evidence did not establish that she performed equal work that
required equal skill, effort, or responsibility.

The AJ concluded that Complainant had not established that the Agency’s reasons for its
actions were pretextual. As a result, the AJ found that Complainant had not been
discriminated or retaliated against as alleged. The Agency subsequently issued a final order
adopting the AJ’s decision. Complainant did not submit any arguments or contentions on
appeal.
0120113317

4
ANALYSIS AND FINDINGS

AJ's Issuance of Summary Judgment as to Claims (1), (2), and (4)

The Commission must first determine whether it was appropriate for the AJ to have granted
summary judgment as to claims (1), (2), and (4). The Commission’s regulations allow an AJ
to grant summary judgment when he or she finds that there is no genuine issue of material fact.
29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has
held that summary judgment is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists no genuine issue of material
fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for
summary judgment, a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party
must be believed at the summary judgment stage and all justifiable inferences must be drawn in
the non-moving party's favor. Id. at 255. An issue of fact is “genuine” if the evidence is such
that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett,
477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir.
1988). A fact is “material” if it has the potential to affect the outcome of the case.

Upon review of the record, the Commission determines that there are no genuine issues of
material fact or any credibility issues which required a hearing and therefore the AJ’s issuance
of summary judgment was appropriate. The Commission finds that Complainant failed to
show that there was a genuine issue of material fact in this case, and even assuming all facts in
her favor, a reasonable fact finder could not find in her favor, as explained below. Thus, the
Commission finds that the AJ’s grant of summary judgment was appropriate.

Claim (1) Wage Discrimination (February 2006)

The U.S. Supreme Court articulated the requirements for establishing a prima facie 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, Complainant must show that 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 Emp't Opportunity Comm'n, EEOC Appeal No. 01A02919 (Sept. 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 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
0120113317

5
requirement of “equal work” does not mean that the jobs must be identical, but only that they
must be “substantially equal.” Id.

In the instant case, Complainant alleged that, beginning in February 2006, she was
compensated as a GS-12 while CW1 was compensated at the GS-13 level for performing the
same duties. The record reveals, however, that Complainant and CW1 performed similar
duties, but at different levels. CW1 was responsible for developing programs, policies, and
procedures while Complainant was responsible for assisting with these programs. ROI, at 232.
A review of Complainant’s and CW1’s position descriptions reveals that CW1 was tasked with
greater responsibility, was recognized as a subject-matter expert, and was evaluated under
different and higher standards. Id. at 236-48. Additionally, CW1 has continuously performed
DFFWP duties since 1998 and COOP duties since 2001. ROI, 198, 204. Upon Complainant’s
reassignment to the Branch, CW1 provided informal supervision, training, and guidance to
Complainant and reported his observations to DM. Id. at 209.

Because Complainant did not perform the same duties as CW1 (the only male identified by
Complainant), the Commission is not persuaded that she performed equal work under similar
conditions when compared to CW1. Accordingly, the Commission finds that Complainant
failed to prove a violation of the Equal Pay Act as to this claim.

Claims (1), (2) and (4) - Disparate Treatment/Reprisal

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she
must first 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Tx. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden,
Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502 (1993).

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination and reprisal, the Commission finds that the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as discussed above, Complainant was
compensated at the GS-12 level beginning in February 2006, because she did not perform
higher-level GS-13 duties upon her reassignment to the Branch. Regarding claim (2), S2
affirmed that CW1 was the only Security Specialist who served as Acting Branch Manager
because he was the only GS-13 assigned to the Branch. Agency’s Motion for Summary
Judgment, Ex. F, at 3. Further, S1 noted that Complainant never requested or inquired about
being assigned the temporary promotion. Id. Finally, S2 maintained that no GS-12 Security
Specialists were assigned to act as Branch Manager and doing so would have delayed the
0120113317

6
selection of a permanent Branch Manager. Id. When CW1’s detail to the acting position
ended in September 2008, S2 performed the managerial duties until a permanent Branch
Manager was selected in December 2008.

Regarding claim (4), the rating and ranking panel scored the applicants for the Branch
Manager position and set the cut-off score for consideration at 15. Complainant received a
score 13 and was therefore not included on the Certificate of Eligibles for consideration. The
selectee was chosen based on his depth of knowledge of physical security operations,
leadership abilities, and overall work record.

At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance
of the evidence that the Agency's reasons were not the real reasons and that the Agency acted
on the basis of discriminatory and retaliatory animus. Specifically as to claim (4), one way
Complainant can establish pretext is by showing that her qualifications are “plainly superior”
to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Complainant
has failed to carry this burden. A review of the considered candidates’ applications does not
reveal that Complainant’s qualifications for the position were plainly superior to those of the
selectee. Complainant has presented no evidence purporting to show that the Agency’s reasons
for its actions were mere pretext to hide unlawful discrimination or reprisal. As a result, the
Commission finds that Complainant was not discriminated or retaliated against as alleged.

Claim (3) – Wage Discrimination (September 2007)

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. Nat'l Labor Relations Bd., 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

Complainant argued that she should have been compensated at the GS-13 level when CW1
became the Acting Branch Manager. However, substantial evidence of record supports the
AJ's conclusion that Complainant did not perform CW1’s prior duties after he was detailed to
the Branch Manager position. Specifically, CW1 testified that he remained the COOP
manager and maintained program management responsibility. Hr’g Tr., Vol. 2, at 346; ROI,
at 210. Complainant performed no additional duties. As to her role in DFFWP program,
CW1 testified that the program had essentially evolved into a less than full-time position and
0120113317

7
more of a maintenance program. Hr’g Tr., Vol. 2, 411. CW1 added that Complainant
performed the primary functions, but the bulk of the initiatives were already in place. ROI, at
210-11. Thus, as to both the COOP and DFFWP programs, CW1 stated that Complainant had
not performed at the GS-13 level and that Complainant did not even achieve some aspects of
both programs at the GS-12 level. Id. at 210.

The Commission finds that substantial evidence supports the AJ’s conclusion that Complainant
failed to show that CW1 was paid higher wages for equal work. The record reveals that
Complainant did not perform the higher-level duties or assume the greater responsibility for
program management that CW1 previously performed before he began his Acting Branch
Manager detail. Thus, the Commission finds that Complainant failed to prove that the Agency
violated the EPA. Additionally, the AJ properly found that the Agency articulated legitimate,
nondiscriminatory reasons for its actions which Complainant failed to show were a pretext for
discrimination or reprisal for her prior protected activity. As a result, the Commission finds
that Complainant was not discriminated or retaliated against as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

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 (Nov. 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,
0120113317

8
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

February 7, 2013
Date