01A10081
04-05-2002
Fransonia S. Owens, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Fransonia S. Owens v. Department of Veterans Affairs
01A10081
April 5, 2002
.
Fransonia S. Owens,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A10081
Agency No. 98-3943
DECISION
INTRODUCTION
This case involves a complaint filed by Fransonia S. Owens (�complainant�)
against her employer, the Department of Veterans Affairs (�the agency�).
In this complaint, complainant contended that the agency had discriminated
against her on the bases of her race (Black) and color (Black) when it
failed, in September of 1998, to reclassify her position from a GS-6
to a GS-9. Complainant was thus alleging that the agency had violated
Title VII of the Civil Rights Act of 1964 (�Title VII�), as amended,
42 U.S.C. � 2000e et seq.
The agency disagreed, and issued a final agency decision (�FAD�) finding
no discrimination. Complainant filed a timely notice challenging this
FAD. We � the United States Equal Employment Opportunity Commission
(�EEOC� or �the Commission�) � accepted complainant's appeal, and are
issuing this decision, pursuant to 29 C.F.R. � 1614.405(a). For the
reasons detailed below, we agree with the agency and find that no unlawful
race-based or color-based employment discrimination under Title VII was
proven here. However, we believe that complainant may have a claim under
the Equal Pay Act of 1963 (�the EPA�), as amended, 29 U.S.C. � 206(d)
et seq. Because the agency did not conduct a thorough investigation
into this potential EPA (and/or related Title VII sex discrimination)
claim, we conclude that the FAD in question must be affirmed in part
and vacated in part, and that this case must be remanded to the agency
for further investigation.
BACKGROUND
Since the 1980s, complainant worked as a GS-6 Chief of Supply, Processing
and Distribution at the agency's medical facility in Ft. Howard, Maryland.
She claimed that she asked agency management several times during the
1980s and 1990s when and whether she might be promoted. She apparently
was told each time by management that her promotion requests had been
forwarded to the appropriate officials in agency personnel. No promotions
or position reclassifications ever ensued, however, and it is unclear
whether in fact her requests were ever actually forwarded to personnel
at all.
In 1994, the agency's �Central Office� issued a directive outlining new
job criteria for all those throughout the agency nationwide who held
Chief of Supply, Processing and Distribution (�CSPD�) positions.<1>
After this directive was released, the position descriptions of the
CSPDs at the agency's facilities in nearby Baltimore (a White male) and
Perry Point (a White female) were revised, and these other CSPDs were
subsequently promoted to GS-11 and GS-9, respectively. Complainant's
position description remained unchanged, however, and she remained at
the GS-6 level. On or around September 15, 1998, she approached her
supervisor (�RMO�) again about upgrading her position. When he refused,
she filed a formal complaint of employment discrimination over the issue.
The agency accepted this complaint for investigation.
During this investigation, complainant provided an affidavit in which she
explained that she believed she was discriminated against on the bases of
her race and color because white Chiefs (namely, the CSPDs in Perry Point
and Baltimore) were promoted and she was not � even though she performed
the same work as these other Chiefs and had been at the same pay grade
for almost fifteen years. RMO rebutted this race and color claim in
two separate investigative affidavits. He said that the Chief job at
Ft. Howard (complainant's facility) was less complicated than the Chief
jobs at Perry Point and Baltimore (which were larger medical facilities
with many more operations), and indicated that this might have been a
factor distinguishing complainant's grade from that of the Chiefs at
these other locations.<2> He also said that he was not complainant's
supervisor when the 1994 directive was released (and thus did not have
responsibility at that time for ensuring that her position description and
grade were updated to reflect these new guidelines). Finally, he stated
that when he did become complainant's supervisor and complainant asked him
(on or around September 15, 1998) whether he intended to reclassify her
position, he told her he was unable to do so due to budget constraints.<3>
The agency issued its report of investigation on or around February
6, 2000. Complainant subsequently requested a final agency decision on
the matter (in lieu of a hearing before an EEOC administrative judge).
The agency ruled on September 15, 2000. In its FAD, the agency conceded
that complainant had created a prima facie case of race and/or color
discrimination, but nevertheless found that the agency had provided
legitimate, non-discriminatory reasons for its actions which complainant
had not proven to be pretextual. The agency thus concluded that it had
not committed any unlawful employment discrimination.
Complainant filed a timely notice challenging this FAD, which we
acknowledged and docketed as this appeal. Both complainant and the
agency filed statements on appeal. In her brief, complainant continues
to insist that race and/or color played a part in her non-promotion.
The agency, however, reaffirms its denial that any such discrimination
happened and, alternatively, urges us to dismiss complainant's claim on
procedural grounds (asserting that complainant should have first filed
a classification appeal with the Office of Personnel Management (�OPM�),
and/or that her complaint represents an impermissible collateral attack
on OPM's position classification processes). Thus, while complainant
is encouraging us to overturn the agency's ruling, the agency itself is
asking us to consider additional reasons for affirming its FAD.
ANALYSIS AND FINDINGS
We are charged with reviewing this FAD de novo (or �anew�). See 29
C.F.R. � 1614.405(a). This essentially means that in deciding this case,
we are free to accept or reject the agency's factual and legal conclusions
at will. See Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999) (�EEO MD-110�), at 9-15.
Accordingly, we have carefully reviewed the entire record before us in
our attempt to discern whether a preponderance of the evidence supports
a finding of unlawful discrimination here. See 29 C.F.R. � 1614.405(a).
Complainant is, at least in part, raising claims of race-based and/or
color-based disparate treatment under Title VII. Such claims are properly
analyzed under an evidentiary framework refined over time by the United
States Supreme Court. Beginning with McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), the high Court issued a series of decisions
explaining how plaintiffs (like complainant) can prove unlawful disparate
treatment where direct evidence of such discrimination is lacking.<4>
See id.; see also Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978); Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24
(1978); Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981); United States Postal Service Board of Governors v. Aikens, 460
U.S. 711 (1983); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
Under this Supreme Court precedent (commonly called the �McDonnell
Douglas� framework, after the case which first introduced it), whether an
employer intentionally discriminated against a complainant is a question
of fact. See, e.g., Aikens, 460 U.S. at 715; cf. Burdine, 450 U.S. at
255 n. 8. The plaintiff must thus persuade the relevant fact finder
(this Commission in this case), that discrimination actually occurred.
Accordingly, an evidentiary �burden of production� is placed initially
on the complainant to put forth a prima facie case of discrimination.
The plaintiff may do so by presenting facts which, 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, e.g., McDonnell Douglas, 411 U.S. at 802; see also St. Mary's Honor
Center, 509 U.S. at 510 n. 3. If complainant successfully establishes
such a prima facie case, the burden of production then shifts to the
employer to rebut the complainant's presumptive showing. That is, the
defendant must articulate legitimate, non-discriminatory reasons for
its ostensibly objectionable conduct. See, e.g., McDonnell Douglas, 411
U.S. at 802. If and when the defendant offers such a lawful explanation,
�the presumption raised by the prima facie case is rebutted� and
essentially �drops from the case.� St. Mary's Honor Center, 509 U.S. at
507. Consequently, the complainant must be given �an opportunity to prove
by a preponderance of the evidence that the legitimate reasons offered
by the defendant were not its true reasons.� Burdine, 450 U.S. at 253.
In other words, the burden of production shifts (one last time) back to
the complainant to show that the explanation offered is but a pretext
for the employer's true, prohibited discriminatory intent. See, e.g.,
McDonnell Douglas, 411 U.S. at 804, 807; and Burdine, 450 U.S. at 253.
In summary then, in a Title VII claim of disparate treatment the
complainant at all times carries the ultimate burden of persuading the
finder of fact � by a preponderance of (albeit circumstantial) evidence
� that the complainant was a victim of intentional discrimination. See,
e.g., Sweeney, 439 U.S. at 29 (Stevens, J., dissenting); Burdine, 450
U.S. at 256; Aikens, 460 U.S. at 716; St. Mary's Honor Center, 509 U.S. at
507, 511, 518; and Reeves, 530 U.S. at 143. Complainant has not met this
burden here with respect to her race and color claims. We will assume
for argument's sake (especially since the agency in its FAD concedes the
point) that complainant satisfied her initial obligation to put forth a
prima facie case and race-based and/or color-based disparate treatment.
The agency, however, responded accordingly. That is, it articulated
legitimate, nondiscriminatory reasons for failing in September of 1998
to reclassify her position as a GS-9. As RMO noted during EEO counseling
and in his investigative affidavits, he was under budgetary strain and was
concerned primarily with saving jobs in complainant's facility � not with
promoting or upgrading anyone. Moreover, RMO considered complainant's
job to be distinctly different (i.e., less complex) than the job of
the CSPDs at Perry Point and Baltimore. Complainant failed to prove
that these facially legitimate, nondiscriminatory explanations were a
pretext for race-based or color-based disparate treatment. We see few,
if any, signs in the record tending to show that RMO was dissembling
when he offered these reasons for his refusal to promote complainant.
There certainly is very little evidence supporting � much less proving
by a preponderance of the evidence � the notion that complainant was
treated disparately because she is Black.<5>
We do acknowledge it seems quite unfair that complainant, who may have
performed essentially the same job as either of her counterparts at
Perry Point and Baltimore (or at other agency facilities nationwide),
was required to wait years longer than they before receiving the grade
and pay due her. Nevertheless, mere unfairness � or oversight � is
not grounds for a finding of unlawful employment discrimination under
Title VII. As the agency noted in its FAD:
Our finding that . . . complainant has not sustained her burden of
persuasion is not an endorsement of management's failure to promote the
complainant via upgrading her position prior to 1998, but merely reflects
the limited focus of our inquiry. Title VII does not protect against
unfair business decisions, but only against decisions motivated by an
unlawful animus . . . . [T]hat one may think that management inadequately
considered . . . complainant's request for promotion, or even the fact
that one may think that the upgrades for Chiefs [elsewhere] was carried
out arbitrarily, does not in itself create Title VII liability.<6>
Final Agency Decision (Sept. 15, 2000), at 8.
We agree. However, we also believe that by keeping complainant
classified at a lower grade, and thus paying her less than some of her
CSPD counterparts agency-wide, the agency may very well have committed
a form of sex discrimination by violating the EPA. See, e.g., Corning
Glass Works v. Brennan, 417 U.S. 188 (1974).<7> Complainant did not raise
an EPA claim, specifically in her complaint or on appeal, and the agency
certainly did not investigate it. Nevertheless, given the facts of this
case � especially the years-long delay between the time the agency-wide
directive on CSPDs was released and other male CSPDs were upgraded, and
the time complainant was finally promoted and paid accordingly � we think
the agency should investigate this potential claim, and that complainant
should have an opportunity to request a final agency decision and/or
an EEOC hearing on the matter. Cf. Zendzion v. Department of the Navy,
EEOC Appeal No. 01995807 (Feb. 28, 2002) (where we addressed the merits
of a possible EPA violation even though the complainant had not raised
such a claim herself).
CONCLUSION
Because complainant has not convinced us that race or color,
specifically, had anything to do with the agency inaction at issue,
we cannot hold the agency liable here for race or color discrimination
under Title VII. However, we must remit this case to the agency for
further investigation into whether the agency's delay in reclassifying
complainant's position violated the EPA and/or Title VII's prohibition
on sex-based discrimination.<8> Accordingly, the FAD in question is
affirmed insofar as it finds no race or color discrimination under Title
VII, but is vacated and remanded for further proceedings consistent with
the ORDER below.<9>
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with 29
C.F.R. � 1614.108. The agency shall acknowledge to complainant that it
has received the remanded claims within thirty (30) calendar days of the
date this decision becomes final. The agency shall issue to complainant
a copy of the investigative file and also shall notify complainant of
the appropriate rights within one hundred fifty (150) calendar days of
the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If complainant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below in
the paragraph entitled �Implementation of the Commission's Decision.�
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 complainant. If the
agency does not comply with the Commission's order, complainant may
petition the Commission for enforcement of the order. See 29 C.F.R. �
1614.503(a). 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, complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled �Complainant's Right
to File A Civil Action.� See 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).
If 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 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 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; EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of complainant's complaint. However, if complainant wishes
to file a civil action, complainant has the right to file such action
in an appropriate United States District Court within ninety (90)
calendar days from the date that complainant receives this decision.
In the alternative, complainant may file a civil action after one
hundred and eighty (180) calendar days of the date complainant filed
complainant's complaint with the agency, or filed complainant's appeal
with the Commission. If complainant files a civil action, complainant
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 complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility
or department in which complainant works. Filing a civil action will
terminate the administrative processing of the complaint.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION- EQUAL PAY ACT (Y0900)
Complainant is authorized, under section 16(b) of the Fair Labor
Standards Act (29 U.S.C. � 216(b)), to file a civil action in a court
of competent jurisdiction within two years or, if the violation is
willful, three years of the date of the alleged violation of the Equal
Pay Act regardless of whether complainant has pursued any administrative
complaint processing. The filing of the civil action will terminate the
administrative processing of complainant's complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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 complainant's 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 entitled
�Complainant's Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 5, 2002
__________________
Date
1According to this directive, �[t]here ha[d]
been many discussions and questions on the classifications of Chiefs of
SPD Sections at VA Medical Centers,� and the purpose of the directive
was thus to �establish conformity for the positions in terms of series
and title, as well as to provide guidance on grading of positions.�
Agency Directive (Sept. 29, 1994), at 1.
2For instance, the Chief at Baltimore was actually the overall supervisor
for all CSPDs in the area. See Final Agency Decision (Sept. 15, 2000),
at 3.
3Complainant claimed that when she approached RMO about a promotion in
September of 1998, he replied �I am not interested in upgrading you.
I am only interested in everybody getting paid.� Final Agency Decision
(Sept. 15, 2000), at 2. During EEO counseling, RMO acknowledged that at
the time, he did not see the need to upgrade complainant because there
was talk of closing down the Ft. Howard facility, and he was attempting
just to save the very jobs of the employees there. In an investigative
affidavit, he similarly noted that �[a]t that time we were reducing our
FTE. We had control of our own salary budgets. At that time I was in the
negative balance with my salary budget from the amount I was assigned.
And there was no way in which I could even entertain any thought of
upgrading anybody until I had lost the number of FTE I needed to get
myself underneath my salary cap.� RMO's Supplemental Affidavit, at 6.
4Such a procedural scheme is �crucial to the success of most [disparate
treatment] claims, for the simple reason that employers who discriminate
are not likely to announce their discriminatory motive,� St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 534 (1993) (Souter, J., dissenting),
and �[t]here will seldom be �eyewitness' testimony as to the employer's
mental processes,� United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 716 (1983). Consequently, the Supreme Court
has created an evidentiary �formula [that] does not require direct proof
of discrimination.� International Brotherhood of Teamsters v. United
States, 431 U.S. 324, 358 n. 44 (1977). Cf. Transworld Airlines,
Inc. v. Thurston, 469 U.S. 111, 121 (1985) (explicitly providing that
this circumstantial evidentiary framework is actually inapplicable where
a plaintiff presents direct evidence of discrimination).
5RMO claims that he first realized complainant was operating under a very
old position description when complainant filed the present complaint
(i.e., he asserts that he had always assumed her position description
had been revised when the agency-wide directive on the job was issued
in 1994, and that she had been operating at the appropriate grade
post-1994). He also contends that when he saw her position description
during the processing of this complaint, he realized it was an outdated
one, and says he then submitted it to agency personnel for revision.
Subsequently, her job was in fact reclassified as one with GS-9 potential,
though complainant gives the credit for this to the EEO counselor (who
complainant claims is the one who pushed RMO to submit her slot for
an upgrade). Given the facts of this case, however, we still do not
conclude that complainant had successfully shown that RMO's reasons were
a mask for race or color discrimination. See St. Mary's Honor Center,
509 U.S. at 515 and Reeves, supra.
6Complainant herself seems almost to admit that she alleged race and/or
color discrimination only out of frustration over having no other recourse
to protest the agency's failure to promote her � not necessarily because
discrimination was really at work here. In her appeal brief she explains
that she told RMO at one point that, being a supervisor, she could not
go to the union and file a grievance, and that �the only thing I can do
is go to E.E.O.� Complainant's Statement on Appeal (Nov. 6, 2000), at 4.
7As the U.S. Supreme Court has pointed out, �Congress' purpose in enacting
the [EPA] was to remedy what was perceived to be a serious and endemic
problem of employment discrimination . . . � the fact that the wage
structure of �many segments of American industry has been based on an
ancient but outmoded belief that a man, because of his role in society,
should be paid more than a woman even though his duties are the same
. . . .' The solution adopted was quite simple in principle: to require
that �equal work will be rewarded by equal wages . . . . [Thus, in] order
to make out a case under the [EPA], the [complainant] must show than an
employer pays different wages to employees of opposite sexes �for equal
work on jobs the performance of which requires equal skill.., effort, and
responsibility, and which are performed under similar working conditions
. . . .'� Corning Glass Works, 417 U.S. at 195 [citations omitted].
8If the jurisdictional prerequisites of both the EPA and Title VII
are satisfied, any violation of the EPA would also be a violation of
Title VII. See 29 C.F.R. � 1620.27(a).
9Because we are remanding this case for further investigation, we decline
to address the agency's alternative procedural arguments (raised for the
first time on appeal) that complainant's claim should be dismissed either
(1) because she did not exhaust her other administrative remedies by
pursuing an OPM classification appeal; and/or (2) because her complaint
represents a collateral attack on OPM's classification procedures.
However, we remind the agency that complainant has standing to file
an EEO complaint against the agency as long as she can show that
the agency took some action or omitted to take some action (and thus
rendered her a sufficiently aggrieved employee) on the basis of her race,
color, national origin, religion, age, disability, and/or sex. See 29
C.F.R. �� 1614.103, 106(a). Here, complainant alleged that the agency
discriminated against her by failing to take the necessary actions to
ensure that her position description and pay grade correctly reflected
her duties (in light of the 1994 nationwide directive released by the
agency's Central Office). We express no opinion on whether OPM could
also properly be joined as a defending agency in this case on remand.
However, given complainant's allegation that the agency's inaction
rendered her aggrieved, we are highly skeptical of any agency rebuttal
that the agency itself is an improper defendant at this point. Cf. Koch
v. Office of Personnel Management, EEOC Appeal No. 01A13849 (Dec. 21,
2001) (providing that if and when a complainant believes an agency has
discriminated against him and other jurisdictional prerequisites are met,
such agency is a proper defendant, notwithstanding that other agencies
may also be �indispensable parties� to the relevant action).