01994146
11-02-2000
Linda S. Clark, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Linda S. Clark v. Department of Veterans Affairs
01994146
November 2, 2000
.
Linda S. Clark,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01994146
Agency No. 980135
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, 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.<1> The appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant alleged that she was discriminated against
on the bases of sex (female) and reprisal (prior EEO activity) when:
(1) she was paid less than male pharmacists performing substantially
the same work; and,
(2) the Chief and Assistant Chief of Pharmacy used their positions
and influence to negatively affect her salary.
BACKGROUND
The record reveals that during the relevant time, complainant
was employed as a GS-11, Step 9 pharmacist at the agency's Biloxi,
Mississippi facility. Believing she was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a formal
complaint on September 2, 1997. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. When complainant failed to respond within the time period
specified in 29 C.F.R. Part 1614, the agency issued a final decision.<2>
In its FAD, the agency concluded that complainant failed to establish
a prima facie case under the Equal Pay Act (EPA). The FAD noted that
complainant did not have a job that was substantially equal to the jobs of
either of the higher-paid male pharmacists whom she named as comparators.
The agency then found that complainant failed to establish a prima facie
case of sex discrimination under Title VII, noting that the comparative
male employees named by complainant were not similarly situated to her,
in that they performed different jobs with different responsibilities.
The agency went on to articulate a legitimate nondiscriminatory reason for
its actions. Specifically, the agency noted that the male comparators
were paid more because they had different job responsibilities than
complainant. The agency found that the fact that complainant was a
doctor of pharmacy (referred to as a �Pharm. D� in the record) did not
establish pretext because the possession of an advanced degree does not
entitle one to a higher salary under the agency's pay system. The agency
concluded that complainant failed to establish that the salary disparity
was due to gender discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant argues that her complaint entailed the
following issues: (1) whether she was subjected to sex and/or reprisal
discrimination when the agency did not inform her that her salary could
be negotiated when she applied for appointment, yet allowed males
to negotiate their salaries; (2) whether she was subjected to sex
discrimination when the agency failed to award her the appropriate steps
for each of her achievements under the Special Advancement Achievements
criteria; and (3) whether she was subjected to sex discrimination in
violation of the EPA when the agency consistently boarded and approved
males for appointments at higher salaries and GS pay grades than it did
complainant, even though she was performing substantially the same work.
Complainant contends that accepting the argument that the named
comparators held different jobs and had different responsibilities, would
give employers �the green light� to discriminate. She reiterates that
the functional statements of her job and that of one of the comparators
(TA) are basically the same. She argues that her position requires skills
and responsibilities equal to and, at times, greater than, TA's position.
She also contends that her position should be a GS-12 position according
to agency standards.
Finally, complainant argues that even though she did not expressly
mark retaliation as a basis for her complaint, she alleged and stated
throughout the investigation that she believed she was being discriminated
against due to her prior EEO activity.
The agency responds that the issues accepted for investigation only
included whether complainant was being paid a lower salary than two male
pharmacists due to her sex, and whether the Chief and Assistant Chief of
Pharmacy Service used their positions and influence to determine this
lower salary. The agency also argues that reprisal was never formally
raised as a basis of the complaint.
The agency reiterates the basis of its FAD, briefly responds to the
other issues raised in complainant's appeal brief, and concludes that
complainant failed to establish discrimination.
ANALYSIS AND FINDINGS
As an initial matter, we find that complainant did raise reprisal as a
basis for her complaint. Complainant spoke with the EEO Counselor about
reprisal and indicated in her affidavit that her prior EEO activity
was a motivating factor for the agency's actions. We find that while
complainant may not have formally amended her complaint, the statements
in her affidavit and the counseling report made clear to the agency that
she was alleging reprisal as a basis for the alleged discrimination.
A complainant may amend her complaint to add another statutory basis
for an alleged discriminatory occurrence at any time prior to appeal,
without changing the identity of the claim. See Dragos v. United States
Postal Service, EEOC Request No. 05940563 (January 19, 1995).
In terms of complainant's attempt to reframe the issues of her complaint
on appeal, the broad claim that will be addressed in this decision is
whether complainant is paid less than certain male pharmacists because
of her sex and prior EEO activity. Within this broad claim are smaller
issues, such as whether certain agency officials used their influence to
ensure complainant received this lower salary; whether male applicants
were given the option of negotiating their salaries while females were
not; and whether the Special Advancement Achievements criteria were
improperly followed.
Turning first to complainant's EPA claim, the 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).
A complainant must show that she received less pay than an individual
of the opposite gender for equal work, requiring equal skill, effort
and responsibility, under similar working conditions within the
same establishment. See 29 C.F.R. � 1620.14(a); see also, Telford
v. Department of the Army, EEOC Appeal No. 01973892 (November 2, 1999).
Once the complainant has met this burden, an employer may avoid liability
only if it can 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; or (4) a differential based
on any other factor other than sex. See 29 U.S.C. � 206(d)(1); see also,
Corning Glass Works, 417 U.S. at 196-197.
The requirement of �equal work� does not mean that the jobs must be
identical, but only that they must be �substantially equal.� Corning
Glass Works at 203, n. 24. In the past, courts and the Commission have
looked to whether jobs share �a �common core' of tasks, i.e., whether a
significant portion of the two jobs is identical.� Fallon v. Illinois,
882, F.2d 1206, 1209 (7th Cir. 1989); see also, Telford, supra.
In light of these principles, and after a careful analysis of the record
in its entirety, including the arguments on appeal, the Commission finds
that complainant has failed to establish a prima facie violation of
the EPA. The record establishes that the males cited by complainant
as performing substantially equal work, in fact had very different
responsibilities and performed very different tasks than complainant.
The pharmacy coordinator (MA) named by complainant oversees the
work of other pharmacists and coordinates the entire medical center,
whereas complainant does not oversee any other pharmacists. On appeal,
complainant concedes that MA does not perform substantially equal work
when she focuses her EPA claim on the similarities between her job
and that of the other comparator, referred to as TA. Moreover, while
complainant alleges that TA's job responsibilities are different only
in that they are less than complainant's, the record establishes that
TA's job, unlike complainant's, includes administrative duties. TA is
a Performance Improvement/Quality Assurance pharmacist who, in addition
to performing the duties of staff pharmacists such as complainant, also
analyzes pharmacy program data for performance improvement and coordinates
computer operations with the pharmacy staff and the other departments.
Complainant's job does not involve these coordination/performance
improvement responsibilities.
Turning now to complainant's Title VII claim, disparate treatment
can be established if complainant sets forth evidence of acts from
which, if otherwise unexplained, an inference of discrimination can
be drawn. The agency then has the burden of articulating a legitimate
nondiscriminatory reason for its actions. See Furnco Construction
Corp. v. Waters, 438 U.S. 567, 576 (1978). Complainant must then prove,
by a preponderance of the evidence, that the legitimate reasons offered
by the agency were a pretext for discrimination. See McDonnell Douglas
v. Green, 411 U.S. 792 (1973); Texas Department of Community Affairs
v. Burdine, 450 U.S. 248 (1981).
In this case, we find that complainant has raised an inference of sex
discrimination. A review of the record establishes that between 1995
and 1997 all of the female pharmacists at the Biloxi facility were
GS-11s, whereas half of the male pharmacists were GS-12s or higher.
During these years, there were no female supervisory pharmacists and
only one female pharmacist was promoted, whereas five male pharmacists
received promotions. Moreover, a review of minutes from the agency's
Partnership Council meetings in 1997 reveal that management was concerned
about the disparity in the salaries which existed between male and
female pharmacists. This concern led the presidents of AFGE Local 3968
and1045 (UP1 and UP2) to ask the Assistant Chief of Pharmacy (ACP) why
male pharmacists at the Biloxi station had higher salaries than females.
UP1 testified that when he asked ACP how the Professional Services Board
(PSB)<3> determines the salary a pharmacist would receive, ACP replied
that he asks the males if they wanted more money. UP1 testified that
he then asked if ACP also asked female pharmacists this question and
ACP said that he did not, and that females did not ask for more money.
UP2 recalls this conversation somewhat differently, noting that when
asked why male pharmacists were paid higher salaries, ACP replied that
males asked for more money. In either case, this evidence suggests
that the PBS considered evidence that male applicants could make or
had made larger salaries at another job in determining what salaries to
offer, but did not do the same with female applicants. UP2's version
of this conversation corresponds with ACP's own testimony in that he
noted that two male applicants for pharmacist positions were offered
higher salaries based on evidence that they had received bonafide job
offers from the private sector at higher salaries. Taken together,
this evidence is sufficient to raise an inference that complainant was
subjected to discrimination based on her sex when she was hired at a
lower salary than male pharmacists.
The agency articulated a nondiscriminatory reason for its actions,
namely that TA was paid more than complainant due to his different
job responsibilities. On appeal, the agency further explained that
complainant applied for a GS-11 position in the Medical Service and
that was the position for which she was hired. The agency noted that
all three pharmacists in the Medical Service were GS-11s (one male
and two females, including complainant) and that complainant is paid
more than the male pharmacist in the Medical Service. The agency also
noted that both TA and MA were employed in the Pharmacy Service and had
substantially different functional statements and job responsibilities
from complainant's. Moreover, the record establishes that complainant's
salary is equivalent to that of four of the five GS-11 male pharmacists
in the Pharmacy Service, and greater than both GS-11 female pharmacists
in the Pharmacy Service. The GS-11 male pharmacist with a greater salary
than complainant's was hired more than 10 years before complainant.
In an attempt to establish pretext, complainant offers a number of
arguments. On appeal, she reiterates that the Special Advancement for
Achievement criteria, if correctly applied to her achievements, would
have raised her to a GS-12 position and that the incorrect application
is evidence of discrimination. A review of the file indicates, however,
that these criteria can only be used for within grade advancements and
that complainant received four step increases based on her achievements.
Complainant also argues that while she worked under a different functional
statement than TA, they basically did the same job and that she had
more responsibilities. However, she provides no evidence of this
other than her own testimony and the record indicates that TA had many
administrative responsibilities that complainant did not have. Moreover,
the record establishes that complainant was hired to fil1 a vacancy left
by a male pharmacists who had been a GS-11. Also, the record reveals
that the PSB only had authority to determine the step at which a person
could be hired, not the grade. Since complainant applied for a GS-11
job, the board could only determine at what step she would be hired,
it could not offer her a GS-12 job.
Complainant also notes that there are four Pharm. Ds at the facility and
that while the two males, MA and TA, are GS-13 and GS-12, the two females
are GS-11s. Again, however, the agency is correct in noting that MA
and TA are in a different service than complainant and have different
job duties. Furthermore, there is no dispute that complainant is
sufficiently qualified to be a GS-12 pharmacist. The agency's position
is that they have no GS-12 vacancies, that complainant accepted the
offer for a position she knew to be a GS-11 position, and that the PSB
did not have the authority to offer her a higher grade.
While complainant argued that ACP made it known to male pharmacists
that salaries could be negotiated, but did not inform complainant, a
female, of this opportunity, the evidence she offers on this point only
establishes that the PSB considered the evidence of previous salaries
and bona fide job offers provided by males in determining what salaries
to offer them.<4> Complainant provided no evidence that she offered the
PSB such evidence and they ignored it. Indeed, as noted above, the PSB
gave complainant four step increases based on her experience. Moreover,
there is no evidence that male pharmacists applying for positions
advertised as GS-11 positions were hired as GS-12s. To the contrary,
the record is clear that all three pharmacists within complainant's
service are GS-11s and that complainant's salary is higher than the
GS-11 male pharmacist within her service. Furthermore, the record also
establishes that complainant's salary is equivalent to that of four of
the five GS-11 male pharmacists in the Pharmacy Service.
We note that complainant is correct that there is a disparity between the
salaries and grades of female and male pharmacists at the Biloxi facility.
However, while the arguments made and evidence produced by complainant
are sufficient to raise an inference of discrimination, without more,
she fails to meet her burden of establishing sex discrimination by a
preponderance of the evidence.<5>
Lastly, while complainant established a prima facie case of reprisal
discrimination, the agency articulated a legitimate reason that
complainant failed to establish was a pretext for reprisal discrimination.
The agency reiterated that complainant was hired for the position for
which she applied, a position that was advertised as a GS-11 position
and formerly held by a male GS-11 pharmacist. Complainant did not meet
her burden of establishing that the agency's explanation is, more likely
than not, a pretext for discrimination.
Accordingly, the agency's finding of no discrimination in regard to
complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 2, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The record indicates that complainant mistakenly believed that
investigative summary and analysis was a decision on the merits.
After realizing this, the agency renotified complainant's attorney of
complainant's right to a hearing. When no response was received within
thirty days of the receipt of this notification, the agency issued a FAD.
3 The grade at which a position will be advertised is determined by
the Executive Leadership Committee, based on the application of the
service where the job will be located. The position is then advertised
at that grade and pharmacists apply. The PSB reviews the applications
to determine whether the applicants are qualified for a position at
that grade level. The PSB cannot alter the predetermined grade level of
the position. It can determine the appropriate salary within that grade
level by granting step increases based on factors such as education and
experience, as well as Special Advancement for Achievement factors, which
include achievements such as contributing to an article or book, being a
member of a state regulatory board, and being an agency representative
to a National Health Task Force or Convention. ACP is the chairman of
the PSB and there is a list of GS-12 and GS-11 pharmacists who alternate
service.
4 As noted above, UP1 and UP2 provided different versions of the
conversation they had with ACP. UP2's version corresponds with ACP's
testimony that it was the male applicants who brought up the issue of
more money, rather than members of the PSB. As complainant provided
no further evidence on this point, we are unable to justify crediting
UP1's version over UP2's.
5 The Commission is aware that a finding of sex and race discrimination
due to salary disparity was rendered in a similar case stemming from
the Biloxi, Mississippi facility. See Jones v. Department of Veterans
Affairs, EEOC Appeal No. 01994717 (date of closure not available).
We note, however, that the GS-11 female pharmacist in Jones established
that she was paid less than the GS-11 pharmacists within the Pharmacy
Service, and did not rely on the salary disparity between herself and
higher-grade male pharmacists who performed different duties than she,
as does complainant in the subject case. Moreover, the complainant
in Jones also provided evidence that the PSB, while considering the
current salaries and/or other job offers of male applicants, failed to
consider the evidence in her application concerning her current salary.
While complainant in the case at hand also presented evidence to indicate
that the PSB considered the current salaries and/or job offers of male
applicants, she provided no evidence to establish that her current salary,
other job offers, or other information in her application, was ignored
by the PSB. Indeed, the record establishes that the PSB gave complainant
four step increases in recognition of her education and achievements.