01A12850etal
08-27-2002
Leanna Allen et al., Complainant, v. Richard W. Riley, Secretary, Department of Education, Agency.
Leanna Allen et al. v. Department of Education
01A12850; 01A12851; 01A12852; 01A12853; and 01A12854
August 27, 2002
.
Leanna Allen et al.,
Complainant,
v.
Richard W. Riley,
Secretary,
Department of Education,
Agency.
Appeal Nos. 01A12850; 01A12851; 01A12852; 01A12853; and 01A12854
Agency Nos. ED-98-34000; ED-98-35000; ED-98-36000; ED-98-37000; and
ED-98-38000
Hearing Nos. 100-99-7718x; 100-99-7719x; 100-99-7720x; 100-99-7721x;
and 100-99-7722x
DECISION
These appeals involve a dispute between Leanna Allen, Amelia Parham,
Veronce Washington, Joyce McKinley, and Felonila Gruhlke (�complainants�)
on the one hand, and the Department of Education (�the agency�) on the
other. At all relevant times, complainants worked as GS-12 Education
Program Specialists or Program Analysts in the Program Operations Group
in the agency's Office of Impact Aid Programs (part of the agency's
Office of Elementary and Secondary Education). On or around May 26,
1998, each complainant filed a separate, but substantially similar,
formal equal employment opportunity complaint against the agency.
These complaints collectively alleged that the agency had discriminated
against complainants on the bases of their sex (female), by refusing to
grant them accretion of duties promotions to GS-13, and by failing to pay
them the same pay the agency was paying their male counterparts for the
same work. Complainants were thus alleging that the agency had violated
the Equal Pay Act of 1963 (�the EPA�), as amended, 29 U.S.C. � 206(d)
et seq., and Title VII of the Civil Rights Act of 1964 (�Title VII�),
as amended, 42 U.S.C. � 2000e et seq.<1>
The agency accepted these five complaints for investigation, and
ultimately issued five separate reports of investigation on these matters
(one per complainant). After receiving these reports, complainants
requested a joint hearing before an administrative judge (�the AJ�) from
the United States Equal Employment Opportunity Commission (�EEOC� or �the
Commission�). However, after reviewing the relevant investigative reports
and the entire record, the AJ issued a consolidated decision on the five
complaints without first holding a hearing. This AJ ruling, dated January
17, 2001, found that complainants had not established a prima facie case
of discrimination under either Title VII or the EPA, and that the agency
had not subjected them to unlawful sex-based employment discrimination.
On February 16, 2001, the agency issued five separate final agency orders
(�FAO�) (one per complainant) fully implementing the AJ's decision.
Complainants then each filed a timely notice with EEOC challenging their
respective FAOs. This Commission accepted these notices and docketed
them as these appeals. For administrative convenience, and because
they involve similar issues, we have now consolidated these appeals
for adjudication. See 29 C.F.R. � 1614.606. We are issuing this
decision under the authority granted to us by 29 C.F.R. � 1614.405(a).
In doing so, we are charged with reviewing the AJ's decision to grant
summary judgment in favor of the agency (and the FAOs implementing it)
de novo (or �anew�). See EEO Management Directive for C.F.R. 29 Part
1614 (rev. Nov. 9, 1999) (�EEO MD-110�), at 9-16. This essentially
means that we look at the case with fresh eyes, and are free to accept
(if accurate) or reject (if erroneous) the AJ's (and agency's) legal
and factual conclusions.
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). 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 Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also 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.
In ruling on a motion for summary judgment, a court's (and an EEOC
administrative judge's) function is not to weigh the evidence, but
rather to determine whether there are genuine issues for trial (i.e.,
a hearing). 477 U.S. 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. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
After analyzing all the evidence in this record and considering the
merits of the underlying complaints, we believe the AJ did err in issuing
a summary judgment in this case. We believe there are outstanding
genuine issues of material fact which the AJ either did not address or
dismissed prematurely. Most critically, the parties are in disagreement
over whether complainants performed substantially the same work as that
performed by named male comparators who were paid more. Compare Agency's
Appeal Brief (June 25, 2001), at 17 (arguing that complainants �have not,
and cannot, show that their duties required identical skill, effort,
and responsibility as do the duties of the GS-13 and GS-14 males) with
Complainants' Appeal Brief (May 23, 2001), at 15, 21 (claiming that
complainants and �the male counterparts have a common core of tasks,
have the same supervisory chain, and work in the same office,� and that
�[t]he work that the [complainants] and the male counterparts perform
is virtually the same�). This dispute is a genuine issue. From our
reading of the record, a reasonable fact finder could find in favor of
complainants that the complainants did perform substantially equal work
as the male comparators. This genuine issue is over a material fact,
as well. For if the male comparators did indeed perform substantially
equal work and were paid more for it, complainants could prevail
on their EPA and Title VII claims. See, e.g., 29 C.F.R. � 1620.13(a)
(explaining that �[t]he EPA prohibits discrimination by employers on the
basis of sex in the wages paid for �equal work on jobs the performance
of which requires equal skill, effort and responsibility and which are
performed under similar working conditions'�). Thus, this genuine issue
of material fact � one which the AJ and agency largely failed to address
� alone warrants reversal of the AJ's summary judgment (and the agency's
adoption of it). See, e.g., Bateman v. Office of Management and Budget,
EEOC Appeal No. 01995644 (Oct. 3, 2001).<2>
CONCLUSION
Accordingly, the AJ's decision and FAOs in question are reversed and
this case is remanded to the appropriate hearings unit for a hearing on
complainants' complaints, consistent with the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC
field office a request for a hearing on the five underlying complaints
within fifteen (15) calendar days of the date this decision becomes final.
The agency is directed to submit a copy of each of the relevant complaint
files to the EEOC Hearings Unit within fifteen (15) calendar days of
the date this decision becomes final. The agency shall provide written
notification to the Compliance Officer at the address set forth below
that the complaint files have been transmitted to the Hearings Unit.
Thereafter, the AJ (or whichever administrative judge is appointed to
conduct the hearing) shall hold a hearing on the claim(s) originally
accepted by the agency for investigation. The AJ shall then issue a
decision on the five complaints in accordance with 29 C.F.R. � 1614.109,
and the agency shall issue a final action on this AJ decision in
accordance with 29 C.F.R. � 1614.110.
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 each complainant. If the
agency does not comply with the Commission's order, each complainant may
petition the Commission for enforcement of the order. See 29 C.F.R. �
1614.503(a). Each 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, each 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.� See 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on an underlying complaint is subject to
the deadline stated in 42 U.S.C. � 2000e-16(c). If a complainant files
a civil action, the administrative processing of such complainant's
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 a 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of the complainants' complaints. However, if any complainant
wishes to file a civil action, such complainant has the right to file such
action in an appropriate United States District Court within ninety (90)
calendar days from the date that such complainant receives this decision.
In the alternative, such complainant may file a civil action after one
hundred and eighty (180) calendar days of the date such complainant filed
such complainant's complaint with the agency, or filed such complainant's
appeal with the Commission. If a complainant files a civil action, such
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 such complainant works. Filing a civil action will
terminate the administrative processing of the relevant complaint.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION- EQUAL PAY ACT (Y0900)
Each 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 a complainant has pursued any administrative
complaint processing. The filing of the civil action will terminate
the administrative processing of such complainant's complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If a complainant decides to file a civil action, and if such complainant
does not have or cannot afford the services of an attorney, such
complainant may request that the Court appoint an attorney to represent
such complainant and that the Court permit such 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 the
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 �Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 27, 2002
__________________
Date
1If 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).
2In its appeal statement, the agency notes that the AJ �made his decision
without having to reach [the issue of whether complainants were performing
work equal to that performed by the named male comparators], on which,
clearly, there is a dispute of the facts.� Agency's Appeal Brief (June
25, 2001), at 10 n. 4. The agency thus seems to be arguing that this
dispute is not over a material fact, because even assuming complainants
performed substantially equal work for less pay, the agency can prove an
affirmative defense to liability under the EPA and Title VII. The agency
asserts that the wage and grade distinctions between complainants
and the male comparators �are based on the application of . . . bona
fide, gender-neutral, acceptable federal personnel laws.� Id. at 22.
Whether this is true, however, is also a genuine issue of material fact.
See Complainants' Appeal Brief (May 23, 2001), at 58. Thus, this issue,
too, should have precluded summary judgment here.