0120090681
08-25-2011
Joyce M. Stovall, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Joyce M. Stovall,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090681
Agency Nos. 2003-0686-2006100303
2003-0686-2006102822
2003-0686-2007100408
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s October 15, 2008 final decision concerning the
three captioned formal complaints that claimed unlawful 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.
BACKGROUND
During the period at issue, Complainant was employed as a Radiologist at
the Agency’s VA Eastern Kansas Healthcare System in Leavenworth, Kansas.
The record reflects that as a Radiologist, Complainant’s
responsibilities include reading MRIs, CT scans and radiographs.
The record further reflects that Agency management assigned the various
studies a Relative Value Unit (RVU) which was based on the complexity of
the study and effort required to perform the reading. Each radiologist
was responsible for performing a certain number of studies.
Complainant filed three formal complaints on December 20, 2005, July
28, 2006, and December 14, 2006, respectively. Therein, Complainant
alleged that the Agency discriminated against her on the bases of race
(African-American), national origin (American, African-American), sex
(female), and in reprisal for prior protected activity when1:
a. on or about June 28, 2005, she was issued an overall “satisfactory”
performance rating rather than a “highly satisfactory” performance
rating for the period of July 15, 2004 to July 15, 2005 (Agency
No. 2003-0686-2006100303, hereinafter referred to as Complaint 1);
b. she received a memorandum dated October 11, 2005, issuing her revised
productivity assignments for 2006, which assignments made it more
difficult for her to achieve the required quota of established RVUs as
compared to her co-workers (Complaint 1);
c. on January 23, 2006, she was issued a memorandum by the Service
Line Manager (summarizing a meeting of January 19, 2006) which made
productivity-related assignments, which she alleges were discriminatorily
made (Complaint 1);
d. on May 17, 2006, she was notified of her new pay determination, and
alleged her pay was not equal in compensation to other radiologists’ pay
(Agency No. 2003-0686-2006102822, hereinafter referred as Complaint 2);
e. on or about September 30, 2006, she received a “highly
satisfactory” proficiency rating (Agency No. 2003-0686-2007100408,
hereinafter referred as Complaint 3);
f. on or about November 16, 2006, she received her Performance Pay
Decision, denying her pay for performance for fourth quarter 2006
(Complaint 3);
g. on or about February 18, 2007, she submitted recommendations concerning
her Performance Pay Plan, and the recommendations were not implemented
(Complaint 3);
h. on or about October 27, 2006, she was denied the opportunity to change
her accrued annual and sick leave balances (Complaint 3);
i. on or about November 28, 2006, she was issued a Written Counseling
regarding false and unfounded statements (Complaint 3);
j. on or about April 6, 2007, she was issued a Letter of Admonishment
(Complaint 3);
k. effective December 16, 2006, she was instructed that the turn around
time for film interpretation and verification was 48 hours (Complaint 3);
l. on December 15, 2006, she was limited to the peer review of only one
co-worker (Complaint 3);
m. her request of November 20, 2006 to attend advance Cardiac CT training
on January 19-21,2007 was not approved/denied (Complaint 3);
n. on July 16, 2007, another employee abruptly entered her office without
permission and insisted on searching her personal belongings (Complaint
3); and
o. on July 27, 2007, she was diagnosed as having Post Traumatic Syndrome
(PTSD) resulting from the July 16, 2007 incident, and has been under
medical supervision since that date and has not been released to return
to work (Complaint 3).2
Following the investigation, Complainant was provided with a copy of
the report of investigation and notice of her right to request a hearing
before an EEOC Administrative Judge (AJ). Complainant initially requested
a hearing. The record reflects that the AJ consolidated Complaints
1–3 under EEOC Hearing No. 560-2007-00053X. However, Complainant
subsequently withdrew her request. Consequently, the Agency issued a
final decision on October 15, 2008, pursuant to 29 C.F.R. § 1614.110(b).
In its October 15, 2008 final decision, the Agency found no
discrimination. The Agency found that Complainant did not show by a
preponderance of the evidence that she was discriminated against on
the bases of race, national origin, sex, and retaliation. The Agency
further concluded that Complainant did not prove, by a preponderance of
the evidence, that the Agency’s proffered reasons for its actions were
a pretext for discrimination.
Regarding the harassment claim, the Agency found that the evidence in the
record did not establish that Complainant was subjected to harassment
based on race, national origin, sex and retaliation. Specifically,
the Agency found that the alleged harassment was insufficiently severe
or pervasive so as to create a hostile work environment.
Regarding the Equal Pay claim, the Agency found that Complainant did
not show that she performs work substantially equal in skill, effort
and responsibility to the work of her male comparators.
Regarding claim a, the record reflects on June 20, 2005, management issued
Complainant a memorandum advising her that her productivity lagged behind
her colleagues, and urged her to increase her productivity by 10 to
20 percent. The record further reflects that management expected each
staff radiologist to earn an average of 4000 RVUs for any given year.
Complainant had earned only 2,160.4 RVUs for the period of May 1, 2004
through April 30, 2005.
Complainant’s first line supervisor (S1) stated that he gave
Complainant an overall satisfactory performance rating rather than
a highly satisfactory performance rating for the period of June 15,
2004 to July 15, 2005. Specifically, S1 stated that Complainant “was
initially given a satisfactory rating and that the Complainant was not
happy with it. He stated that to improve the Complainant’s morale he
changed the rating to highly satisfactory.”
The Service Line Manager, also Complainant’s second line supervisor
(S2), stated that the reason for the change of Complainant’s performance
rating was that Complainant “did not want to sign the evaluation if
it was satisfactory, so [S1] told me that in order to get her to sign
her evaluation he changed it from satisfactory to highly satisfactory.”
Regarding claim b, S2 stated that on October 11, 2005, he sent out a
memorandum “to all of the radiologists to keep them informed of their
productivity in RVU for the quarter beginning July 1, 2005 to September
30, 2005 [emphasis in its original].”
Regarding claim c, the record reflects that on January 23, 2006, S2 issued
Complainant a memorandum summarizing the discussions of a meeting they
had on January 19, 2006. The purpose of the January 19, 2006 meeting
was to reach a solution to increase Complainant’s RVU numbers; and
from that meeting S2 indicated he thought they had found a solution to
the problem of Complainant’s low production. S2 stated that he did not
think the subject memorandum served to “disadvantage [Complainant].”
Specifically, S2 stated that the memorandum “summarized the meeting
that I had with [Complainant]. She was told that she could bring a union
representative or her attorney to the meeting; neither was present.”
The record reflects in his January 23, 2006 memorandum, S2 stated that
in order to provide Complainant with more opportunities to earn RVUs,
“[Complainant] has agreed to read all MR studies done during the week,
except for those done on Mondays, which will still be rotated between
[S1] and [Complainant].”
Regarding claim d, Complainant alleged that she is paid less than the
male radiologists at the VA Eastern Kansas Healthcare System, including
the Leavenworth facility and the Topeka facility. The record reflects
that while Complainant was the only female radiologist, there were
three full-time male radiologists and one part-time male radiologist.
One of the three full-time radiologists was S1. Out of the full-time
radiologists, Complainant and a named male radiologist (R1) who works
at the Topeka facility are Diagnostic Radiologists. The record further
reflects that S1 and a named male radiologist (R2) who works at the
Topeka facility are Therapeutic and Diagnostic Radiologists.
The record reflects that the difference between a Diagnostic Radiologist
and a Therapeutic Radiologist is that a Therapeutic Radiologist
performs intravenous procedures while a Diagnostic Radiologist does not.
Complainant, while certified capable of performing intravenous procedures,
does not, and is not allowed to do so in her job. The record reflects
that Complainant acknowledged the last time she performed therapeutic
skills was in 1998 or 1999, and she does not have the privileges to
perform therapeutic procedures any longer.
The record reflects that on May 17, 2006, after a panel of physicians
reviewed the pay set for all radiologists, Complainant’s annual pay
was increased to $195,000. In her affidavit, Complainant acknowledged
she had no knowledge as to the salaries earned by any of the other
male radiologists. The record reflects that Complainant earned a higher
salary than two of the male Diagnostic Radiologists (one of whom is only
part-time), and a lower salary than S1 and R2.
S2 stated that he was on the compensation panel along with other
eight doctors. S2 stated that there are two classes of Radiologists,
Diagnostic Radiologists and Therapeutic Radiologists. S2 stated that
Therapeutic Radiologists are much more difficult “because they require
more training, and it also requires that they be skilled in what they
do because there is potential for serious complications.” S2 further
stated that there is a distinction in the VA system between the two
classes of Radiologists. Specifically, S2 stated that “the amount
of the pay that they get and the amount of training that they need to
have so they can be privileged for doing invasive procedures.” For
instance, S2 stated that R2 makes more money than Complainant because in
addition to having general Radiology training, he has also had Fellowship
training in Neuro Radiology “so his skill level is certainly greater.
In addition to that, he is also trained in doing invasive procedures,
which is Therapeutic Radiologist.”
Further, S2 stated that in Topeka, the Agency experienced “great
difficulty in recruiting for a Radiologist. In fact, we have had a
Radiology position vacant there for almost close to two years before we
were able to recruit [R2], so we have this problem of recruitment and
retention greater in Topeka compared to Leavenworth, and the special pay
that was approved by Congress is to assist us in recruiting and retaining
highly qualified individuals, so we use the pay to make it attractive
to bring highly qualified Radiologists to the Topeka division where we
have had the greater difficulty in recruiting.”
S2 stated that S1, also a Radiologist, was paid more than Complainant
because he is in Tier II. Specifically, S2 stated that S1 “ a
supervisor or a Program Manager automatically go[es] into Tier II.
They are not in the Tier I, the same category as [Complainant].” S2
stated that the differences in the increases of the Radiologists’ pay,
“the new pay structure was meant to correct one of the problems with the
old pay structure. Under the old pay structure, people with longevity got
more money.” S2 stated that out of the three Diagnostic Radiologists,
Complainant “is paid the most because of her tenure.”
S2 stated that the panel recommended that Complainant’s pay be increased
to $200,000. S2 stated, however, the former Medical Director (D1)
reduced the panel’s recommendation of $200,000 to $195,000. S2 stated
that he did not know the reason why D1 reduced the recommended salary
for Complainant “because I was not part of the decision.” S2 stated
that D1 also reduced eight other doctors’ recommended increase pay.
The Chairperson (CP) of the panel stated that the panel focused on the
market pay. Specifically, CP stated the panel focused on the market
pay and “we also took into consideration what their base pay would be,
because we were looking at the total pay, what the total pay would come
out to, so we also had to look at what the base pay was, although we could
not determine anything by the base pay that was set, but we took that
into consideration when we looked at the market pay.” CP stated that
the panel recommended that Complainant’s pay be increased to $200,000.
Specifically, CP stated “so that $200,000 was, the panel had determined
another $71,000 on top of her base pay, for a reasonable salary compared
to other VA physicians with her credentials.”
The record reflects that R2 and S1 received pay increases of seventeen
percent and eighteen percent, respectively, whereas Complainant was
given an eight percent increase. CP stated there was a difference in the
increases because the panel felt that R2 and S1 were “grossly underpaid
for the services that they provide as Therapeutic Radiologists.” CP
stated that R2 also had a fellowship “which is additional training
over any of the other Radiologists.”
D1 stated based on the panel’s recommendations, he reduced the panel’s
recommendation of Complainant’s pay increase to $200,000 by $5,000,
along with seven other physicians. The record reflects that the range
of deduction ranged from the amount of $15,000, the highest decrease and
the lowest decrease was $5,000, which included Complainant. D1 stated
“there were a number of things that I took into consideration and
I’m having difficulty now trying to remember them. I believe one
of the criteria was their period of service, and there were several
other criteria that were used. It was the criteria that was used
in establishing the salaries, the recommendations. I used that same
criteria to review them and reduce them.” Furthermore, D1 stated that
Complainant’s sex was not a factor in his determination to reduce her
recommended pay increase.
Regarding claim e, S2 stated that during the relevant time S1 was on
annual leave and was unable to complete Complainant’s evaluation. S2
further stated “in order to meet timely completion of [Complainant’s]
performance evaluation I did an annual evaluation.” S2 stated that
he reviewed Complainant’s previous evaluation and “then I took into
account . . . her overall evaluation that I was aware of for the last
year, and based on the elements listed there and based on what I know I
gave her the same highly satisfactory evaluation that she had received
for the full 2004 to 2005 year.”
Further, S2 stated that he gave her a highly satisfactory rating “even
though I was aware of the fact that she had three major misdiagnoses
that came up in the peer review process. I have several radiologists
on my staff, and none of them had as many major misdiagnoses in that
prior year as she had, and so . . . it takes into account a variety of
elements.” S2 stated that there were other performance issues that he
was aware of and “I gave the benefit of doubt and marked [Complainant]
highly successful even though there were some serious issues in her
performance the prior year.”
S1 stated that during the relevant time, he was on leave “when
Complainant was given her 2006 rating so [S2] gave the Complainant her
highly satisfactory rating and that [S1] agreed with the rating.”
Regarding claims f and g, S2 stated the performance pay decisions have
nothing to do with an employees’ performance evaluation. S2 stated
“for example, . . . just to give you an example, you could have [a
criterion] that every diabetic patient gets his eyes checked. If all of
your patients get their eyes checked, then it is so much money. If you do
10 percent more endoscopies this year, then you get so much money. So it
depends on what it is that we are trying to achieve as a hospital.” S2
stated that before he arrives at criteria, he asked all radiologists for
their advice, and “as a result, I have not received from any of the
radiologists what criteria that we want to use. All radiologists get an
opportunity to suggest items that we should improve on. [Complainant]
had an opportunity. I sent an e-mail to her. She had time to respond,
but she did not respond in 2006. She did not respond in 2007 with any
specific ideas.”
Regarding claim h, the record reflects that in May and June 2006,
Complainant took extended leave due an illness in her family.
S2 stated that he received Complainant’s request dated July 6, 2006,
requesting ten days of annual leave and eleven days of sick leave,
which he approved. S2 further stated that he received a note from the
Administrative Officer “who made the changes, and then after she made
those changes [Complainant] and the timekeeper had a series of e-mails
going back and forth. One of the changes that were made [Complainant]
is disputing that [it was] not correct. Then I get another request
to reverse it. My response is that the initial request that she gave
us to make the changes we did it, and she was disputing whether we have
correctly entered those changes. Now, to go back and change it one more
time, I said, we’re going to have difficulty in proving if something
is right or if something is wrong, because we had already agreed to make
changes the first time that she made a request. So the second request
to change it again would make it very difficult for us to track exactly
. . . her annual leave and sick leave usage for that period of time.”
S2 stated that although the Administrative Officer told Complainant that
it was too close to the end of the fiscal year to make the changes for
the second time, t Complainant contacted the Fiscal office and “fiscal
office informed that it is not too close to doing corrected time cards
because we had a few more days left, so she’s asking that we change
it, but I felt that we were close to the end of the fiscal year because
the administrative office had other duties to get accomplished, and
she wasn’t sure that she would get this accomplished in a timely
fashion.” S2 stated that he gave Complainant a verbal response
concerning her second request.
Regarding claim i, S2 stated that on November 28, 2006, he gave
Complainant a written counseling for failure to respond to calls and
pages while she served as the on call radiologist on October 29, 2006.
Specifically, S2 stated that on October 29, 2006, Complainant was on
call and a named physician (P1) “attempted to contact her because
there was a patient’s X-ray that needed to be read. The patient had
injured a leg and the shoulder, and the ER doctor wanted the X-rays to be
ready by a radiologist, and [Complainant] was the radiologist on call.
[P1] called her approximately at 10:00 a.m. on October 29, 2006, and
the call was made to her home, and the individual who responded to the
phone call, which I believe is [Complainant’s] spouse, told [P1] to
call the cell phone. When they tried to call the cell phone the message
on the cell phone said user unavailable, and that typically happens if
you have turned off the cell phone.”
Further, S2 stated that P1 then tried to page Complainant and “she
did not respond. After about two hours and 45 minutes after failing to
contact [Complainant] they called me at home, and then I tried to call
[Complainant’s] phone number.” S2 stated that Complainant’s
husband answered the phone and told him to try Complainant’s cell
phone number and “I said we tried to call her on the cell phone and
it says unavailable but that he can pass on the message to her, and he
hung up on the phone from me. So then . . . we ended up contacting
another radiologist who had a radiology system at home to read those
studies.” S2 stated that management looked at Complainant’s cell
phone “to see because one of her statements is that her cell phone
wasn’t working, but when we looked at the log of the incoming phone
calls, we knew the cell phone was working in fact, on the date that she
said it wasn’t working because she received an incoming phone call.
So based on all of those things and the fact that she has not responded
to repeated attempts to contact her she was given a written counseling.”
Regarding claim j, S2 stated that on March 7, 2007, he issued Complainant
a proposed admonishment for the manner in which she handled an emergency
situation while she was on call on February 17, 2007. Specifically,
S2 stated that the patient, a Lieutenant Colonel, came to the emergency
room “with acute abdomen[al pain], and the ER doctor examines the
patient, and he requests a CT scan of the abdomen to be done at nine
in the morning. The ER doctor describes the pain as being very severe,
and he’s actually rating it 15 out of 10. It’s severe than the most
severe pain.” S2 stated that following the CT scan, Complainant was
first contacted around noon. S2 stated, however, Complainant “said
that she was not able to download all of the images, and at two o’clock
she says that she’s able to see some of the images, and that on the
images that she can see that there is nothing abnormal, but then she
couldn’t tell for sure if the study is normal because she says not
all of the images are there.”
S2 stated that a physician then re-sent images to Complainant. S2 stated
that at that time, the ER doctor “is getting concerned because he
has not heard from [Complainant], and so he calls her back again, and
I don’t have the exact time, but it says it’s almost five hours
and 45 minutes after completing the CT scan, and he is asking her if
she could come to the hospital to read the CT scan because she’s not
able to see all of the images...And her response is ‘ No. I have a
life.’ That’s her response, and [ER doctor] quotes her.” S2
stated that the next day, Complainant reported to work and looked at
the patient’s CT scan and “she changes her mind. Now she thinks
the patient has acute appendicitis…so she then calls the surgeon, and
the surgeon called the patient back, and they operate on him that day,
and they found acute appendicitis.”
S2 stated that after consulting with Labor Relations, he made a
determination to issue Complainant an admonishment for her unprofessional
behavior on February 17, 2007. Specifically, S2 stated “so we have a
patient who is an active duty lieutenant colonel who comes to the hospital
with an acute appendicitis for five and a half hours, no diagnosis is made
and he is sent home, and the most troubling is the last statement from
the ER doctor, which says as follows: all I know is that this lieutenant
colonel doesn’t think very highly of this institution anymore.
There were very good people working here today that were doing their
best to take care of the veterans like they always do. Unfortunately,
that was not what was remembered. [Complainant] made us all look bad.”
Regarding claim k, the record reflects that in December 2006, management
established a policy requiring that studies needed to be read within
48 hours. The record further reflects that management also devised
a new peer review system under which Complainant could only review
S1’s work and vice versa. Complainant alleged that she was not being
given credit individually for her turnaround time. S2 stated “the
way the turnaround time is measured is for a hospital as a whole, so
when we pulled these numbers it’s both the Leavenworth and the Topeka
combined.” Specifically, S2 states “it doesn’t really matter if
one radiologist fails or doesn’t fail.”
Regarding claim l, S2 stated that initially the peer review process was
that Complainant and S1 reviewed the studies of a named radiologist
B1, and B1 reviewed Complainant and S1’s studies, and then when they
did the peer review [Complainant] and [S1] found fault with [B1], and
[B1] found fault with [S1] and [Complainant]. And then when they came
to me, my response to them is, if you think the other radiologist is not
reading correctly, then you need to have a dialogue with that radiologist.
Because when they came to me and say that somebody else made an error,
I want them to resolve as to if the error, in fact, occurred. I want a
dialogue, but they don’t talk to each other. There is no communication
about these errors amongst the radiologists. So - - and as long as
there is no communication to resolve it, then the purpose of the quality
assurance to improve the quality of care is not going to take place.”
S2 stated that he then paired two radiologists “together that when they
do the peer review process, if they find some problem, they can talk to
each other and resolve it, so that’s a learning process . . . If I’m
missing something, I need to be told what it is that I’m missing so I
can improve it. So if there is no dialogue, then the whole process is
wasted.” S2 stated that in the instant case, he paired Complainant
and S1 together “since they communicated well with each other.”
Regarding claim m, the record reflects that Complainant and S1 requested
to attend Cardiac CT training but their requests were denied. S2 stated
that the Cardiac CT training “is not appropriate because we have not
yet purchased the advanced cardiac CT package on the new CT scanner we
have here in Leavenworth. We have the CT scanner, but we don’t have
the advanced cardiac software to do the cardiac imaging.” S1 further
stated that the software package is worth over $85,000 and “unless the
hospital decides that we need the software here it will not be purchased,
so there is no reason to send anyone for training.”
Regarding claim n, the record reflects that on July 16, 2007, a named
Privacy Officer (PO) met Complainant to discuss her use of compact disks
containing sensitive medical data. Complainant reportedly used to data
the instruct podiatry resident physicians. The discussion concerned
the authorization given for Complainant to remove the sensitive data
from VA premises. During the conversation, Complainant grew angry and
demanded that PO leave her office. The record reflects that Complainant
allegedly grabbed PO’s arm in order to remove her from her office
and Agency police officers were summoned. Following the arrival of the
officers, Complainant reportedly shut the office door on PO’s finger.
Complainant thereafter turned the disks over to a VA police officer.
Regarding claim o, Complainant went out on medical leave following the
incident with PO and claimed that she developed PTSD, depression and
anxiety as a result of the July 16, 2007 encounter. The record reflects
that Complainant eventually returned to work but later retired from
Agency employment.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erred finding no
discrimination. For instance, Complainant argues that S2 and his
assistant provided the investigator “misleading” information.
Complainant further argues that S2 “somehow led the panel to believe
that [Complainant] was not as qualified as the other two Radiologists
he identified as ‘Therapeutic’ Radiologists.” Complainant
argues that S2 “provided misinformation to the Information Security
Officer regarding patient information captured on computer disks that
[Complainant] had authorization to study and utilize in order to fulfill
her assigned duties to teach the Podiatry residents.”
Finally, Complainant argues that after she returned to work and “facing
several years of unreasonable and intolerable working conditions that
the Agency was apparently never going to change, the Complainant finally
felt compelled to retire.”
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, 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
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency’s actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions, as addressed above. Neither
during the investigation nor on appeal has Complainant produced evidence
that these proffered reasons were a pretext for unlawful discrimination.
Harassment
Harassment of an employee that would not occur but for the employee’s
race, color, sex, national origin, age, disability, or religion is
unlawful, if it is sufficiently severe or pervasive. Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
A single incident or group of isolated incidents will generally not be
regarded as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee’s work performance.
In the instant case, we find that the record does not support a finding
that Complainant was subjected to any Agency action that rose to the
level of a hostile work environment.
Equal Pay Act
Complainant contends that the fact that she was paid less than the male
radiologists is a violation of the Equal Pay Act. 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 he or she 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. Id. at 195. Sheppard v. Equal Employment
Opportunity Commission, EEOC Appeal No. 01A02919 (September 12, 2000);
see also 29 C.F.R. § 1620.14(a).
Once a Complainant has met the burden of establishing a prima facie case,
an employer may avoid liability only if it can be prove that the pay
difference is justified under one of the four affirmative defenses set
forth 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); Corning Glass Works, 417 U.S. at 196-197; Kouba v. Allstate
Insurance Co., 691 F.2d 873 (9th Cir. 1982). The requirement of “equal
work” does not mean that the jobs must be identical, but only that
they must be “substantially equal.” Id. (citing Corning Glass
Works, 417 U.S. at 203. n. 24; Homer 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)).
Complainant contended she received less pay than S1 and R2 for doing
equal work requiring the same skill, effort and responsibility. However,
Complainant acknowledged that she no longer performs such invasive work.
The record reflects that S1, as Complainant’s supervisor, has more
responsibilities than Complainant. In addition to his supervisory duties,
S1 performs therapeutic procedures as well as the diagnostic procedures
performed by Complainant. The record further reflects that R2 is the
Program Manager and staff supervisor at the Topeka facility. In addition
to his performance of both therapeutic and diagnostic procedures, he is
trained in neuro-radiology. Because Complainant did not perform these
duties, we are not persuaded that she performed equal work under similar
conditions when compared to S1 and R2, and therefore find that she failed
to prove a violation of the Equal Pay Act.
Complainant, on appeal, has provided no persuasive arguments indicating
any improprieties in the Agency’s findings. Therefore, after a
review of the record in its entirety, including consideration of
all statements on appeal, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the Agency’s final decision because
the preponderance of the evidence of record does not establish that
discrimination occurred.3
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 25, 2011
__________________
Date
1 For ease of reference, the Commission has re-lettered all of
Complainant’s claims as claims a–o.
2 The record reflects that claims f, k, m, n and o were later amended
to the instant Complaint 3.
3 Because we affirm the Agency’s finding of no discrimination concerning
claims (a) and (b) as discussed above, we find it unnecessary to address
alternative disposition of these claims on procedural grounds.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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