01986625
09-28-2001
Diane F. Stallings, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Diane F. Stallings v. Department of the Army
01986625
09-28-01
.
Diane F. Stallings,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01986625
Agency No. ATL 96 AR 0546 E
Hearing No. 130-97-8117X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether complainant has established that she
was discriminated against on the bases of race (Black) and sex (female)
when: (1) on or about October 6, 1995, she was notified that she would
not be reclassified from her position as an EEO Officer, GS-260-12,
to the GS-230-13 grade level<1> and (2) on or about December 8, 1995,
she was required to use eight (8) hours of annual leave in order to
attend a Southern Christian Leadership Conference (SCLC).
BACKGROUND
The record reveals that complainant is an EEO Officer at the agency's
Chemical and Military Police Center in Fort McClellan, Alabama.
Prior to her assignment as an Equal Employment Officer, complainant was
the EEO Manager, GS-12. In 1993, a Chief of Staff (COS1) (White, male)
made a determination that systemic discrimination existed at the agency
facility which resulted in an upgrade in complainant's level from a GS-11
to the GS-12. She was assigned as the EEO Officer effective May 3, 1994.
The previous occupant of the position (Black, male) was classified at the
GS-230-13 level. When he was to resign from federal service, the agency
decided to abolish his position in order to give him voluntary incentive
separation pay. When the position was abolished, complainant absorbed all
the EEO Officer's duties and responsibilities but remained at the GS-12
level. Thereafter, complainant requested that the position be changed to
a GS-13. In June 1995, a re-evaluation of complainant's job duties was
conducted which initially resulted in an approval for the 13 grade level.
A new Chief of Staff (COS2) (White, male) had approval authority over
the matter. After consulting with the Director of Civilian Personnel
(Director), the COS2 forwarded the classification documents to the Staff
Judge Advocate (SJA) who was asked to review the record of systemic
discrimination and determine whether complainant's position warranted
the GS-13 level. The review was conducted by two Labor Counselors (LC1)
(White, male) and (LC2) (Black, female). They concluded that there was
no longer the systemic problem which would warrant a reclassification of
the position to the GS-13 grade level. The Labor Counsels also noted
that based upon a review of EEO cases filed over a seven year period
the factors needed to justify the GS-13 grade level did not exist.
Accordingly, COS2 disapproved the reclassification of complainant's
position to the GS-13 level.
Complainant requested eight hours of administrative leave for the purpose
of attending a SCLC seminar which was to be held on December 8, 1995.
COS2 informed complainant that he would allow her to take administrative
leave if she would be willing to escort a group of civilian and military
employees. Complainant could not locate such a group and had to request
annual leave instead. COS2 approved the leave. Complainant claims that
others were allowed to attend conventions while on administrative leave.
Believing she was a victim of discrimination, complainant filed a formal
EEO complaint with the agency on January 4, 1996, alleging that the agency
had discriminated against her as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of race and sex discrimination. Specifically, the AJ found that
complainant failed to demonstrate that similarly- situated employees
not in her protected classes were treated differently under similar
circumstances in both claims. Further, the AJ determined that there
was no direct evidence of discrimination.
Based upon the record, the AJ issued a decision finding no discrimination.
The agency's final decision implemented the AJ's decision. On appeal,
complainant contends that the AJ erred when he found that complainant
failed to establish a prima facie case of discrimination based on
sex and race. As to claim (1), complainant argues that COS1 was
the decision-maker who defended her position as a 13 level position.
COS2 deferred the decision to the SJA because of his bias of EEO.
Furthermore, complainant contends that the EEO Officer is usually placed
in an adversarial position with the SJA and the LC1 and LC2. Complainant
also claims that her duties were the same duties performed by her
predecessor at the GS-13 level and that is the level she was placed in
and not GS-12 which did not exist when she was assigned to the position.
Finally, complainant asserts that during her employment at the agency's
facility, there have been systemic problems which continue to exist
impeding the agency's progress in the area of affirmative action.
The agency requests that we affirm its decision to implement the AJ's
finding of no discrimination.
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). 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 as to complainant's claims in violation of Title VII. We note
that complainant failed to present evidence that any of the agency's
actions were motivated by intentional discriminatory animus toward
complainant's race and/or sex in violation of Title VII. We discern no
basis to disturb the AJ's decision.
Although complainant did not specifically assert a claim under the
Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. � 206(d) et seq.,
complainant's claim of gender-based pay discrimination also states a
claim under EPA. 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, a complainant must show that she or he received
less pay than an individual of the opposite gender for equal work,
requiring equal skill, effort and responsibility, under similar working
conditions within the same establishment. Id.; see Arnold v. Department
of the Treasury, EEOC Appeal No. 01960490 (July 28, 1998); see also 29
C.F.R. � 1620.14(a). Once complainant has met this burden, an employer may
avoid liability only if it can prove that the pay difference is justified
under one of the four affirmative defenses set fourth 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); see also Corning
Glass Works, at 196-97.
The requirement of �equal work� does not mean that the jobs must be
identical, but only that they must be �substantially equal.� Corning
Glass Works at 203, n. 24; Horner 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). The factors of skill, effort and responsibility
used to measure the equity of jobs are not precisely definable.
29 C.F.R. 1620.14(a). Skill includes such things as �experience,
training, education, and ability.� 29 C.F.R. 1620.15. Effort addresses
�the amount of physical or mental exertion required to perform the
job.� 29 C.F.R. 1620.17. However, the terms �skill, effort, and
responsibility� �constitute separate tests, each of which must be met
in order for the equal pay standard to apply.� 29 C.F.R. 1620.14(a).
Although insubstantial or minor differences do not render the equal pay
standard inapplicable, �substantial differences, such as those customarily
associated with differences in wage levels when the jobs are performed
by persons of one sex only, will demonstrate an inequity as between the
jobs justifying differences in pay.� Id.
Upon review of the record, the Commission finds that complainant has
established a prima facie case. Complainant alleged that she was
paid less than the previous holder of the position who was a male.
We note that comparators need not have held their jobs at the same time.
EEOC Compliance Manual, EEOC Number 915.003, 10-27 (December 5, 2000).
Next, complainant must show that she was paid less than the comparator
for equal work, requiring equal skill, effort and responsibility, under
similar working conditions within the same establishment. Complainant
has shown that she absorbed all the duties and responsibilities of her
predecessor within the same establishment. Accordingly, we find that
complainant has established here prima facie case for a violation of
the EPA.
The burden now shifts to the agency to prove that the pay difference is
justified under one of the four affirmative defenses set fourth in the
EPA in order to avoid liability. The agency did not raise the defenses
of a seniority system, a merit system, or a system which measures
earnings by quantity or quality of production of work. Therefore,
we look to see if the agency has shown that the difference was based
on any other factor other than sex. The agency must establish that
a gender-neutral factor, applied consistently, in fact explains the
compensation disparity. The agency argued that over the previous seven
years, the number of cases in the EEO office did not warrant a GS-13.
However, the decision by LC1 and LC2 is inconsistent with the original
assessment of complainant's duties and responsibilities which initially
approved the GS-13 designation. Furthermore, the agency's argument does
not explain the disparity between complainant and her predecessor who
both served in the position during the decline in cases in the EEO Office.
As for the agency's explanation regarding the lack of a systemic problem,
we again find that this does not explain the disparity between complainant
and her male predecessor. Therefore, upon review of the record,
we find that the agency has not established its affirmative defense
to complainant's claim of wage based sex discrimination. Accordingly,
we find that complainant has shown that the agency's failure to pay her
at the GS-13 grade level was a violation of the EPA.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM in part and
REVERSE in part the agency's final decision.
ORDER
The agency is ORDERED to take the following remedial action:
(1) Within sixty (60) calendar days of the date this decision
becomes final, the agency is directed to award complainant back pay, with
interest, for the difference between the GS-12 salary she received and
the GS-13 salary she should have received. The agency shall determine
the appropriate amount of back pay, interest and other benefits due
complainant, pursuant to 29 C.F.R. � 1614.501. Complainant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to complainant for
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. Complainant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
�Implementation of the Commission's Decision.�
(2) The agency is further directed to submit a report of compliance,
as provided in the statement entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Chemical and Military Police Center
in Fort McClellan, Alabama, copies of the attached notice. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
__09-28-01________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated , which found that a
violation of the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d)
et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The Department of the Army's Chemical and Military Police Center in Fort
McClellan, Alabama, supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under law.
The Department of the Army's Chemical and Military Police Center in Fort
McClellan, Alabama, has been ordered to remedy an employee affected
by the Commission's finding that she was discriminated against based
on her sex. As a remedy for the discrimination, the Department of the
Army's Chemical and Military Police Center in Fort McClellan, Alabama,
was ordered to provide the employee with back pay, interest, and other
benefits due. Finally, the facility shall submit a compliance report to
the Commission verifying the completion of all ordered corrective action.
The Department of the Army's Chemical and Military Police Center in
Fort McClellan, Alabama, will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The Department of the Army's Chemical and Military Police Center in Fort
McClellan, Alabama, will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
________________________
Date Posted: ________________
Posting Expires: _____________
1 In the record, the grade level complainant wished her position would
be reclassified to was referred to as GS-230-13 and GM-230-13 at various
times in the record. For clarification purposes, this decision will
refer to this grade level as GS-230-13 or GS-13.