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