Delfina Y., Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 25, 2016

0120142899 (E.E.O.C. Feb. 25, 2016)

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

Delfina Y.,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120142899
Hearing No. 480-2013-00082X
Agency No. 200P-0691-2012100112

DECISION

Complainant filed an appeal from the Agency’s July 17, 2014, 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, as amended, 29 U.S.C. § 206(d) et seq. For the following reasons,
the Commission AFFIRMS the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as Chief of
Transportation, Management and Program Analyst (Chief of Transportation), GS-12, at the
Agency’s Medical Center facility in West Los Angeles, California. During the relevant time, the
Chief Engineer was Complainant’s first level supervisor (S1) and was responsible for approving
her compensatory time requests.

On November 8, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), and color
(black) when:

Complainant was denied compensatory time for the period 1999 – August 2011.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

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On February 2, 2012, the Agency dismissed Complainant’s complaint for failure to state a claim.
Specifically, the Agency found that Complainant’s claim alleged a violation of the Fair Labor
Standards Act which it stated was not an Act enforced by the EEOC.

Complainant appealed the Agency’s dismissal. In EEOC Appeal No. 0120121709 (July 11,
2012), the Commission reversed the Agency’s dismissal. The Commission found that
Complainant stated a claim under the Equal Pay Act and remanded the complaint for further
processing.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision
without a hearing. The AJ issued a decision without a hearing on May 15, 2014.

In her decision, the AJ found the parties had a full and fair opportunity for appropriate discovery.
The AJ noted it is undisputed that Complainant did not seek electronic discovery concerning her
time and payroll records during the investigation of her case. Rather, the AJ noted the Agency
briefs dated February 6, 2013, and February 13, 2013, indicate that the request for computer
records going back to 1999 was made on February 5, 2013, on or after the last day of the
discovery period. The AJ found the Agency demonstrated that the task of accessing electronic
information more than 10 years old would be costly and unlikely to produce any probative
evidence. Specifically, the AJ stated the Agency was under no duty to preserve the electronic
information sought by Complainant from 1999 until the initiation of the EEO process in 2011.
The AJ stated that while arguably under a duty to preserve relevant evidence which includes
Complainant’s overtime records since the initiation of this case, the Agency received no requests
for such records until 2013. The AJ stated that at that point, the process of attempting to retrieve
even partial records was prohibitively expensive. Finally, the AJ determined that such records
would not be relevant and material to Complainant’s claim because there was no claim that a
request for compensatory time was denied.

Rather, the AJ noted that in the approximately 13 years Complainant held her position as Chief
of Transportation, she requested and received 75 hours of compensatory time. The AJ noted
Complainant’s written/e-mailed requests were never denied.

The AJ recognized that Complainant’s appraisals reflected that as Chief, she often worked 10-12
hour days and that her job required more than the standard 40 hours a week. The AJ noted that
Complainant received assistance in April 2009, which alleviated her work hours, and her 2009-
2010 appraisal did not refer to Complainant working hours in excess of 40 hours per week.

The AJ noted Complainant alleged disparate treatment and denial of equal pay by comparing
herself to a male Supervisory Biomedical Engineer, GS-13 (Person A). The AJ noted Person A
was male and White. The AJ stated that while both jobs were hard, Person A’s job was not
substantially equivalent in skill, effort, responsibility, or working conditions. The AJ noted that

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an outside audit identified a specific reason why Person A had to work more than 40 hours a
week.

Further, the AJ noted that Person A did not receive any compensatory time unless he asked for it,
and that he worked in excess of 40 hours a week for quite a while before he asked for it. The AJ
noted that Person A never received retroactive compensatory time or compensatory time for
working at home. The AJ noted Person A was off work due to illness since August 2012.
Further, the AJ noted that no employee ever requested compensatory time for every workday for
13 years.

The Agency subsequently issued a final order on July 17, 2014. The Agency’s final order fully
implemented the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

On appeal, Complainant stated she had not seen an official written Agency policy regarding
compensatory time. Complainant explained that she understood that managers were expected to
work long hours to get the job done. Complainant stated that she understood that only in special
circumstances or emergencies would compensatory time or overtime be paid. Thus,
Complainant stated that she worked long hours to get the job done. Complainant stated she did
not learn until later that Person A was claiming compensatory time every day and received more
total compensatory time than she did. Complainant acknowledged that in November 2010, a
subordinate supervisor was finally hired to help her. Complainant stated one of the reasons she
had to work late from 1999 to 2010, was because she was the lone management official
supervising 30 employees and dealing with difficult operations, and difficult employees.
Additionally, Complainant claimed the AJ failed to address the fact that during discovery
Complainant discovered that four other male colleagues received hundreds of hours of
compensatory time and overtime.

In response to Complainant’s appeal, the Agency argues the evidence supports the AJ’s decision.
The Agency notes that the AJ found Complainant was paid for all the requests for compensatory
time that she submitted at the time she worked the extra hours, but she failed to establish that she
should have been compensated after the fact for over 10 years of compensatory time that she
never requested at the time she earned it. The Agency noted that the AJ further found that
Complainant failed to prove that any similarly situated person was allowed to earn compensatory
time for over 10 years without complying with the Agency policy to request compensatory time
and obtain approval before working the additional hours.

ANALYSIS AND FINDINGS

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 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of
review “requires that the Commission examine the record without regard to the factual and legal

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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 law”).

The United States 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 (1974). To
establish a prima facie case of a violation under the EPA, a complainant must show that she or he
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.
Sheppard v. EEOC, EEOC Appeal No. 01A02919 (September 12, 2000), req. for reconsideration
denied, EEOC Request No. 05A10076 (August 12, 2003).

All forms of pay are covered by the EPA, including salary, overtime pay, bonuses, stock options,
profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline
allowances, hotel accommodations, reimbursement for travel expenses, and benefits. See EEOC
Compliance Manual, Section 10: Compensation Discrimination (Dec. 5, 2000); 29 C.F.R. §
1620.10.

Once a complainant has met the burden of establishing a prima facie case, an employer may
avoid liability only by showing that the difference in pay is justified under one of the four
affirmative defenses set forth in the EPA: (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 as an
incentive or piecework system); or, (4) a differential based on any factor other than sex. Id. We
note that the EPA is limited to certain sex-based differentials in wages. The EPA does not
prohibit discrimination in other aspects of employment, even those that have compensation-
related consequences, such as hiring, firing, promotion, transfer, or other issues. Wiley v.
Department of the Treasury, EEOC Appeal No. 01972118 (June 27, 2001) (citing
Schnellbaecher v. Basking Clothing Co., 887 F.2d 124, 130 (7th Cir. 1989) (a claim of
discriminatory promotions is beyond the scope of the EPA but actionable under Title VII)).

Upon review of the record we find that the AJ properly found that the present complaint was
suitable for summary judgment. We note that the record is adequately developed, the AJ
properly ruled on discovery motions, and there are no disputes of material fact.

In the present case, assuming arguendo Complainant has established a prima facie case of a
violation under the EPA, we find that the Agency has shown the difference in pay was justified
based on a factor other than sex. Specifically, the Agency has shown that Person A was hired in
March 2010, and eventually allowed compensatory time because a November 2009 external
Biomedical Engineering Program Review report identified serious patient safety deficiencies in
how the facility’s medical equipment program was being managed at the time. In his affidavit,
S1 stated that Person A had to regularly work beyond his tour of duty from the time he began
working at the facility to bring his shop to an acceptable level of performance. However, the
record reveals that Person A did not receive compensatory time until he formally requested it

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from S1. Although Person A had been regularly working past his tour of duty prior to his formal
request for compensatory time, he did not receive any retroactive compensatory time and was
only given compensatory time for work performed when he was physically present at the facility.
The record reveals Person A has been off work due to illness since August 2012.

With regard to Complainant’s disparate treatment claim, we find the Agency presented a
legitimate, nondiscriminatory reason for its actions. Although Complainant stated she was not
aware of compensatory time policies, the record establishes that she knew how to request
compensatory time and that she made such requests when she felt it was appropriate. We note
that while Complainant now regrets how much compensatory time she requested over a 10-year
period, the record reveals that S1 approved all of the 75 hours of compensatory time actually
requested by Complainant.2 Complainant failed to establish that she should have been
compensated after the fact for over 10 years of compensatory time that she never requested at the
time she allegedly earned it. Moreover, Complainant failed to prove that any similarly situated
person was allowed to earn compensatory time for over 10 years without requesting
compensatory time and obtaining approval before working the additional hours. There is no
evidence that any similarly situated employee received retroactive compensatory time. Upon
review, we find Complainant failed to establish by a preponderance of evidence that the
Agency’s actions were a pretext for discrimination.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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
2 While Complainant’s complaint alleges she was denied compensatory time from 1999 – August
2011, we note that Complainant subsequently stated she did not work more than eight hours after
July 6, 2010.

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1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s February 25, 2016
Carlton M. Hadden, Director Date
Office of Federal Operations