Douglas M. Adkins, Toney M. Gantt, Peter J. Merkwa, Complainants,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 1, 2004
01a45093_01A45094_01A45104 (E.E.O.C. Nov. 1, 2004)

01a45093_01A45094_01A45104

11-01-2004

Douglas M. Adkins, Toney M. Gantt, Peter J. Merkwa, Complainants, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Adkins, Gantt and Merkwa v. Department of Veterans Affairs

01A45093, 01A45094, 01A45104

November 1, 2004

.

Douglas M. Adkins,

Toney M. Gantt,

Peter J. Merkwa,

Complainants,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal Nos. 01A45093, 01A45094, 01A45104

Agency Nos. 2004-0659-2003101746, 2004-0659-2003101748,

2004-0659-2003101744

Hearing Nos. 140-2004-00097X-WMS, 140-2004-00115X-WMS, 140-2004-00105X-WMS

DECISION

Complainants timely initiated an appeal from the agency's final orders

concerning their equal employment opportunity (EEO) complaints of unlawful

employment discrimination in violation of the Equal Pay Act of 1963, as

amended, 29 U.S.C. � 206(d) et seq. The appeals are accepted pursuant

to 29 C.F.R. � 1614.405. For the following reasons, the Commission

affirms the agency's final orders.

BACKGROUND

The record reveals that complainants, Addiction Therapists, Title 5, at

the VA Medical Center (VAMC) facility, VAMC Residential Rehabilitation

Treatment Program, located in Salisbury, North Carolina, filed formal

EEO complaints on April 10, 2003, alleging that the agency discriminated

against them on the basis of sex (male) when, from 1997 to the present,

a Clinical Nurse Specialist, Nurse Level III, was paid at a higher level

salary.

At the conclusion of the investigation, complainants received copies

of the investigative reports and requested hearings before an EEOC

Administrative Judge (AJ). The AJ consolidated the complaints in the

interest of judicial economy, pursuant to 29 C.F.R. � 1614.606. The AJ

issued a decision without a hearing, finding no discrimination.

The AJ found that complainants failed to establish a prima facie case

under the EPA, concluding that there was insufficient evidence to prove

that complainants received less pay than the Clinical Nurse Specialist

for equal work, requiring equal skill, effort, and responsibility,

under similar working conditions within the same establishment. The AJ

determined that complainants' experience, education and training was

substantially different than that of the Clinical Nurse Specialist.

Specifically, the Clinical Nurse Specialist had responsibilities

and duties that required her to maintain a credentialing standard

at a master's level nurse, and she performed higher level duties than

complainants that required a nursing education. She also was held to the

standards of the Nurse Professional Review Board, whereas complainants

were not. Additionally, the AJ found, even assuming that complainants

established a prima facie case of discrimination under the EPA, that the

agency avoided liability by proving that the difference in pay between

complainants and the Clinical Nurse Specialist was based on professional

standards, rather than based on sex. All nursing employees who qualify

under the Nurse Professional Standards Board are paid under Title 38.

Complainants are not nurses and do not qualify as nurses, and therefore,

are not entitled to Title 38 pay. The AJ also noted that there were

five Addiction Therapists, two females and three males, employed at the

VAMC Residential Rehabilitation Treatment Program, and they all received

similar pay. The agency's final orders implemented the AJ's decision.

On appeal, complainants argue that the record does not support the

AJ's and agency's conclusions that complainants and the Clinical Nurse

Specialist have substantially different duties, despite the fact that to

qualify for Title 38 pay, the Clinical Nurse Specialist is required to

have greater skills and training. Complainants emphasize that the vast

majority of the Clinical Nurse Specialist's time is spent performing the

duties of an Addiction Therapist, and any other duties that she performs

are merely collateral duties. The agency responds that complainant is

reiterating arguments made before the AJ in response to the AJ's Notice

of Intent to Issue a Decision Without a Hearing, and that the evidence of

record supports the agency's position that the Clinical Nurse Specialist

performs more complex duties than complainants. The agency emphasizes

that the difference in pay is based on professional standards, and

not on sex, and if complainants met those standards, then they would

qualify for Title 38 pay. Additionally the agency reiterates that all

five Addiction Therapists, male and female, are paid at the same rate.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a

hearing 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. If a case

can only be resolved by weighing conflicting evidence, the issuance

of a decision without a hearing is not appropriate. In the context

of an administrative proceeding, an AJ may properly consider issuing

a decision without a hearing only upon a determination that the record

has been adequately developed.

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) (citing Corning Glass Works,

417 U.S. at 195) (other citations omitted). Once the complainant has met

this burden, 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 other 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)).

The Commission finds that the AJ properly issued a decision without

a hearing regarding complainants' claims that they were not paid at

the same rate as the Clinical Nurse Specialist. Complainants failed

to meet their burden of establishing a prima facie case under the EPA.

It is undisputed that complainants, Addiction Therapists, hold different

positions than the female employee to whom they compare themselves.

The record reveals that the positions require different levels of skill,

effort and responsibility. Notably, complainants do not contend that

they are paid differently than the two female Addiction Therapists.

Furthermore, the record shows that even if complainants did establish

a prima facie case under the EPA, any difference in pay stems from the

professional standards met by the Clinical Nurse Specialist, rather than

due to the employees' sex. Therefore, we find that the AJ's issuance of

a decision without a hearing was appropriate. See Petty v. Department

of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).

After a careful review of the record, including arguments and evidence

not specifically discussed in this decision, the agency's final orders

are AFFIRMED.

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 (S0900)

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 (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

November 1, 2004

__________________

Date