01992806
11-17-2000
Lori A. Adams, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Lori A. Adams v. Dept. of Veterans Affairs
01992806
November 17, 2000
.
Lori A. Adams,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01992806
Agency No. 96-0646
Hearing No. 270-96-9096X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant alleges that the agency discriminated against her on the
basis of her sex (female) when she was paid a GS-101-09 salary while
performing duties comparable to those of male colleagues paid at the
GS-101-11 level. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission REVERSES the agency's FAD.
The record reveals that complainant, a GS-101-9 Addiction Therapist
assigned to the Drug Expansion Program at the agency's Medical Center
in New Orleans, Louisiana (�facility�), claimed that there were male
Addiction Therapists employed at the facility who had the same level
of experience and performed the same job functions as she did, but
were paid at the GS-101-11 grade level solely due to their gender.
Complainant filed a formal EEO complaint with the agency on October
31, 1995, alleging that the agency had discriminated against her as
referenced above. At the conclusion of the investigation, complainant
was provided a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
issued a decision finding gender and wage-based discrimination.
Gender Discrimination
The AJ concluded that complainant established a prima facie case of gender
discrimination as she is a member of a protected group due to her sex,
and similarly situated male employees performed substantially the same
work as did complainant but were paid at the GS-101-11 grade level. In so
finding, the AJ found after consideration of the evidence that complainant
was performing substantially the same duties as one comparative male
Addiction Therapist (C1), whose position was graded at the GS-101-11
level from 1994 through 1996, and was also performing substantially
the same duties as another comparative male Addiction Therapist (C2)
whose position had been graded at the GS-101-11 level since 1992. The AJ
then concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, that an agency desk audit stated that
the duties performed by C1 and C2 were more complex than complainant's
duties in part as they included �team leader� responsibilities, and thus
the male employees merited being paid at a higher grade. The AJ further
noted the agency's testimony that C1 was classified as a career ladder
promotion to the GS-101-11 level, and that C2 was later downgraded to
the GS-101-9 level.
However, the AJ found that complainant established that it was more
likely than not that the reasons provided by the agency were a pretext
for discrimination. In reaching this conclusion, the AJ found that
despite the desk audit, there was no appreciable difference in the work
performed by complainant, C1 and C2, and further that the agency's
statements regarding the reasons C1 and C2 were classified at the
GS-101-11 grade level were unworthy of credence. In finding the agency's
reasons pretextual, the AJ noted that complainant, C1 and C2 worked at the
same facility, counseled veterans and their families who were victims of
substance abuse, worked with physicians and reported to a supervisor, thus
they had the same duties except team leader responsibilities which the AJ
found to be non-grade controlling. The AJ thus found that complainant
was discriminated against on the basis of her gender when she was not
promoted to the GS-101-11 level.
Wage Discrimination
The AJ found that as complainant alleged that she performed the same
work as male colleagues but received lower pay, her allegation �amounted
to a claim under the [Equal Pay Act] EPA or Title VII of sex-based wage
discrimination.� The AJ noted that as complainant did not allege a
violation of the EPA, her claim was analyzed under Title VII. The AJ
found that complainant established a prima facie case of sex-based
wage discrimination, as she is a member of protected groups and was
performing the same work as male counterparts but was paid less. The AJ
further found that the agency failed to meet its burden in providing
an appropriate affirmative defense, as the evidence established that
complainant, C1 and C2 were performing equal work, requiring equal skill
and responsibilities and under similar working conditions. The AJ noted
that while the agency justified C1 and C2 being graded at the GS-101-11
level as they performed �team leader� duties, these duties were non-grade
controlling. As such, the AJ found that the agency discriminated against
complainant due to her sex when it failed to promote her to Addiction
Therapist GS-101-11.
The agency's FAD rejected the AJ's decision and found that the agency had
not discriminated against complainant when it failed to promote her to a
GS-101-11 Addiction Therapist position. The FAD found that the agency's
desk audit established that complainant was not performing essentially
the same duties as the GS-101-11 comparators, and thus complainant's
position was properly graded at the GS-101-09 level. Complainant contends
on appeal that the agency systematically discriminated against female
Addiction Therapists by failing to promote them to the same grade levels
as comparative males. The agency responds, urging affirmance of the
FAD.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). In addition, the Commission notes that it will
not disturb the credibility determinations of an AJ where, as here,
the determinations are based on the credibility of the witnesses.
Esquer v. United States Postal Service, EEOC Request No. 05960096
(September 6, 1996). An AJ's credibility determinations are entitled
to deference due to the judge's first-hand knowledge through personal
observation of the demeanor and conduct of the witnesses at the hearing,
but this deference is not automatic. Esquer, supra.
Although the AJ found that complainant did not assert a claim under
the Equal Pay Act (EPA) and thus analyzed her claim under Title VII,
the Commission will consider complainant's claim of gender-based pay
discrimination under the standards set forth in the EPA. 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 she or he 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. Id. at 195; Arnold v. Department of the Treasury,
EEOC Appeal No. 01960490 (July 28, 1998) See also 29 C.F.R. �1620.14(a).
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 the
four affirmative defenses set fourth 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
196-97; Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982).
Job classification systems qualify as a �factor other than sex� only if
the systems accurately reflect job duties and/or employee qualifications.
The requirement of "equal work" does not mean that the jobs must be
identical, but only that they must be "substantially equal<2>." Corning
Glass Works at 203, n. 24; Horner 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).
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We discern no basis to disturb the
AJ's decision. The Commission initially agrees with the AJ's finding
that complainant demonstrated that she was discriminated against on the
basis of her gender when she was paid a GS-101-09 salary while performing
duties substantially similar to those of male Addiction Therapists paid
at the GS-101-11 level. In addition, although the agency maintained
that complainant was graded at the GS-101-09 level due to an internal
classification system and confirmed by agency desk audits, we find that
the agency failed to meet its burden under the EPA in establishing
a valid affirmative defense to the presumption of gender-based wage
discrimination. As the AJ noted, a job classification system is not a
defense to a prima facie case of gender-based wage discrimination if an
investigation shows that it does not accurately reflect the actual duties
performed by individuals in the different classifications. We find that
a review of the record supports the AJ's conclusion that complainant
was performing substantially equal work as were the comparative male
Addiction Therapists who were graded at the GS-101-11 level. The AJ
noted that the difference in their work was minimal despite the agency's
classification system, and the alleged differences listed by the agency
are at odds with the desk audits. As the record reflects that complainant
and her male comparators were performing substantially equal work, the
fact that the agency performed three desk audits and each time concluded
that complainant was properly graded does not carry the agency's burden.
Additionally, the Commission declines to disturb the AJ's finding that
the agency's reliance on C1's career ladder promotion and C2's subsequent
downgrade is unworthy of credence.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission finds that
complainant was subjected to discrimination, REVERSES the agency's final
decision and REMANDS the matter to the agency to take remedial actions
in accordance with this decision and the ORDER below.<3>
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall promote complainant to the GS-11 level retroactive to
June 14, 1992 and credit complainant with all appropriate step increases
which she would have been entitled to from June 12, 1992 to the present.
2. The agency shall determine the appropriate amount of back pay,
interest, and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, from the period of June 14, 1992 to the present. The agency
shall complete this action within sixty (60) calendar days of the date
that this decision becomes final. The complainant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due, and
shall provide all relevant information requested by the agency. If there
is a dispute regarding the exact amount of back pay and/or benefits,
the agency shall issue a check to the complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The complainant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision."
3. Within thirty (30) days of the date this decision becomes final,
the issue of damages is REMANDED to the Hearings Unit of the appropriate
EEOC field office. Thereafter, the Administrative Judge shall issue a
decision on this issue if accordance with 29 C.F.R. � 1614.109, and the
agency shall issue a final action in accordance with 29 C.F.R. � 1614.110
within forty (40) days of receipt of the Administrative Judge's decision.
The agency shall submit copies of the Administrative Judge's decision
and the final agency action to the Compliance Officer at the address
set forth below.
4. The agency shall take all appropriate corrective, curative or
preventive action to ensure that similar violations of the law will not
recur. Such action shall include reviewing and revising agency policies
and procedures relating to the investigation and prevention of gender and
wage discrimination so as to provide prompt and thorough investigation
of such complaints, and appropriate and effective remedial corrective
actions in response to such complaints.
5. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay, compensatory damages, and other benefits
due complainant, including evidence that the corrective action has been
implemented.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The 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,
the 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." 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)(Supp. V 1993). If the
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.
POSTING ORDER (G0900)
The agency is ordered to post at its Medical Center, New Orleans,
Louisiana, facility copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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 17, 2000
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ______________ which found that
a violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. has occurred at the Department of
Veterans Affairs Medical Center in New Orleans, Louisiana.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The Department of Veterans Affairs Medical Center in New Orleans,
Louisiana supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law.
The Department of Veterans Affairs Medical Center in New Orleans,
Louisiana, has been found to have discriminated against the individual
affected by the Commission's finding on the basis of her gender by
failing to compensate her at the same level as male colleagues who were
performing substantially equal work, requiring equal skill, effort
and responsibility. The Commission has ordered that this individual
be promoted to the GS-101-11 level and receive appropriate back pay,
with interest. The Department of Veterans Affairs Medical Center in
New Orleans, Louisiana, will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws
and will not retaliate against employees who file EEO complaints.
The Department of Veterans Affairs Medical Center in New Orleans,
Louisiana, will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to oppose
practices made unlawful by, or who participates in proceedings pursuant
to, Federal equal employment opportunity law.
Date Posted: _____________________________
Posting Expires: _________________________
29 C.F.R. Part 1614
1 On 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, where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov.
2 The Commission notes that unlike the EPA, Title VII does not
require �substantially equal� work, but allows for comparisons
of jobs between persons who are similarly situated. See, e.g.,
Crockwell v. Blackmon-Mooring Steamatic, Inc., 627 F.Supp. 800, 806
(W.D. Tenn. 1985).
3 We next note that claims of wage discrimination based on sex can
be brought under the EPA or can be pursued directly under Title VII.
The claims are not mutually exclusive and both avenues of relief can
be pursued simultaneously. See 29 C.F.R. � 1620.27. We note that an
individual may recover under both the EPA and Title VII for the same
period of time so long as the same individual does not receive duplicate
relief for the same wrong. Relief is computed to be the highest benefit
either statute would provide. Pursuant to the provisions of 29
U.S.C. � 206(d)(1), an employer who violates the EPA "shall be liable to
the employee ... in the amount of [her] unpaid minimum wages ... and in
an additional equal amount as liquidated damages." Under 29 U.S.C. �260,
"if the employer shows to the satisfaction of the court that the act
or omission giving rise to such action was in good faith and that he
had reasonable grounds for believing that his act or omission was not a
violation... the court may, in its sound discretion, award no liquidated
damages or award any amount thereof not to exceed the amount specified
in section 216."