01994717
11-02-2000
Maria D. Jones, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Maria D. Jones v. Department of Veterans Affairs
01994717
November 2, 2000
.
Maria D. Jones,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01994717
Agency No. 972170
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 race (black) and sex (female) when:
(1) she was hired in September 1996 at GS-11, Step 7, rather than at
a higher step; and
she was not selected for the position of Pharmacist Team Leader,
Outpatient Pharmacy, GS-12, on or about May 7, 1997.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a pharmacist, GS-11, Step 7 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 of sex or race discrimination in regard to claim 1
because four white males hired at around the same time as complainant were
hired at lower steps than she. Presumably, the agency concluded from this
that complainant failed to establish that similarly situated individuals
not of her protected classes were treated more favorably than she.
The agency went on to articulate a legitimate nondiscriminatory reason
for its actions. Specifically, the agency concluded that complainant was
hired at a GS-11, Step 7 because this was the same grade and step that
she had held when she last worked for the agency's Michigan facility
a few months previously. Although her salary while in Michigan was
$11,000 greater than the salary offered to her as a GS-11, Step 7 at the
Biloxi station, the agency noted that this was due to the geographical
difference. The agency then concluded that the white male comparators
named by complainant were hired at higher steps not based on their race
or sex, but because one refused to accept the offer, if it meant a pay
cut, and the other offered evidence of competing bonafide job offers at
a higher salary�i.e., these men asked for more money.
The agency concluded that complainant had not established pretext,
noting that the fact that her former pay rate was available to the
Professional Standards Board (PSB) that determined her salary, did not
establish that the board members �took the time� to look at it. Finally,
the agency concluded that �if complainant was the victim of anything,
she was the victim of whatever it was that caused her to resign her
former job and move back to [Biloxi].� <3>
In regard to the nonselection claim, the agency found that complainant did
establish a prima facie case of race and sex discrimination, in that she
applied and was qualified for the job, but was not hired, and the selectee
was a white male. The agency, noted, however that the selectee was
chosen because of his greater experience, not his sex or race. Finally,
the agency concluded that complainant did not establish pretext.
On appeal, complainant notes that she also raised an Equal Pay Act claim.
She then essentially reiterates arguments raised during the investigation.
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Salary Discrimination
As an initial matter, we note that complainant raised an Equal Pay Act
claim during the counseling sessions and the investigation, clearly noting
that she was alleging discrimination due to the discrepancy between her
salary and the salary of male pharmacists who performed the same job.
Moreover, on appeal, complainant cites the Equal Pay Act. The agency did
not analyze complainant's claim as an Equal Pay Act claim and provided
no response on appeal as to why it neglected to do so.
The U.S. Supreme Court articulated the requirements for establishing a
prima facie violation 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.
In the case at hand, complainant has established a prima facie violation
of the EPA. The record indicates that she receives less pay than four
male pharmacists within her department (Pharmacy Services) who perform
the same job-- Pharmacist, GS-11-- as she. The functional statements
of the duties of these pharmacists are identical, and while this
is not dispositive, it supports a finding that their job duties are
substantially equal. See Miller v. Department of the Navy, EEOC Appeal
No. 01943457 (December 8, 1995). Moreover, in addition to working in the
same department under the same job description within the same facility,
these pharmacists were supervised by the same chain of supervisors.
Complainant testified in her affidavit that she performs the same duties
and has equal or greater responsibilities, due to her work on the evening
shift, than these male pharmacists. She also alleged that she provided
training on how the job was done to some of these male pharmacists. The
agency did not dispute these contentions and, in fact, the Chief of
Pharmacy (CP) agreed that complainant provided training to some of the
GS-11 male pharmacists. Finally, the Assistant Chief of Pharmacy (ACP)
testified that while there are supervisory pharmacists and specialists
within Pharmacy Services who perform different duties than regular
pharmacists, the rest of the pharmacists within the department�which
would include complainant, another female pharmacist and four male
pharmacists, are �staff pharmacists.�<4> Because complainant was paid
less for doing substantially the same job as four male comparators,
we find that she has established a prima facie EPA violation.
As noted above, the agency did not directly address the EPA claim.
However, complainant clearly stated from the beginning of the counseling
process that she was alleging sex discrimination based on her salary.
Moreover, the agency did provide testimony as to why complainant was paid
less than others in her department. Specifically, the agency stated that
two male pharmacists�Y and Z-- refused the salary initially offered by
the agency and indicated that they would only accept the position if paid
more.<5> These men also provided evidence that they were either making
more in a currently held job, or had a job offer with a higher salary.
In contrast, the PSB was not aware that complainant was paid a higher
salary at her previous agency job and when the agency offered her a
GS-11, Step 7 position at a specified salary, she accepted the offer.
The agency did not argue that any of the male pharmacists in complainant's
position were more experienced, had more seniority, performed better,
or had different job responsibilities than complainant. The agency's
argument, in essence, is that complainant's lower salary is justified
by a �differential based on any other factor other than sex,� i.e., that
the PSB was not aware that she had a higher salary at her previous agency
job and that, unlike Y and Z, she failed to ask for a higher salary.
We find, however, that this explanation is insufficient to overcome
the established prima facie violation of the EPA. The agency bears the
burden of proving that the difference in pay between complainant and her
male counterparts is the result of a factor or factors other than sex.
A review of the record indicates that, like Y, complainant's salary at her
previous agency job was significantly higher than the offer made her by
the agency. This information was available to the PSB, just as evidence
of Y's higher current salary was available to them, when it determined
what complainant's salary would be. The agency cannot claim that its
own failure to consider a female's salary history to the same extent
that it considered the salary history of males excuses its violation
of the EPA. Moreover, the agency cannot justify paying a female less
money than males performing the same job by arguing that, unlike her
male comparators, she failed to ask for more money. Accordingly, we find
that the agency has failed to meet its burden of establishing a valid
affirmative defense to the established prima facie violation of the EPA.
We conclude, therefore, that complainant has established a violation of
the EPA and is entitled to the remedies set out below.<6>
In a situation such as this, where the jurisdictional prerequisites of
both the EPA and Title VII are satisfied, any violation of the EPA is
a violation of Title VII. See 29 C.F.R. � 1620.27; see also, Miller.
Furthermore, we believe that the record supports an independent finding
of intentional discrimination in violation of Title VII. Moreover,
because complainant also alleged that she was paid less due to her race,
we now turn to complainant's Title VII claims.
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 Corp. v. Green, 411, U.S. 792
(1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981).
In determining that complainant did not establish a prima facie case of
sex or race discrimination in regard to the salary issue, the agency
relied on the fact that certain white males hired at around the same
time as complainant, were hired at lower steps, and therefore paid less,
than she. The existence of similarly situated individuals outside of
complainant's protected classes who were not treated more favorably
than she, does not prevent complainant from raising an inference
of discrimination. Indeed, it is clear that complainant has raised
an inference of sex and race discrimination. The record establishes
that three white males and one Asian American male hired for the same
position as she, at the same facility, in the same department, have
higher salaries. Two of these white males and the Asian American male
were hired within a year of complainant. The record also establishes
that both female pharmacists (complainant and a Hispanic female),
in Pharmacy Services in 1997 (i.e., when the record was created) made
less than all the male pharmacists (9 whites and 1 Asian American) and
that only one female pharmacist had been promoted in the past two years
(and this promotion was to a GS-11 position).
The agency's articulated reason for this salary difference is that Y and Z
requested more money.<7> The agency noted that Y had not left his former
job when he applied for a position and indicated that he would not leave
this job if it meant taking a pay cut. The agency further noted that
Z established that he had two competing job offers at a greater salary.
ACP, who was chairman of the PSB that determined complainant's salary,<8>
testified that complainant was offered a position at the same level of
her previous agency position, a GS-11, Step 7. He testified that he
was not aware that in this position she had made $11,000 more than the
salary of a GS-11, Step 7 in Biloxi. CP also testified that he assumed
that because complainant was hired at the same grade and step as she
previously held, she was making the same salary.
We find this articulation to be pretextual. The record establishes that
the information before the PSB when it was determining complainant's
step included not only her previous grade and step, but also her
previous salary. Testimony of ACP makes clear that in determining the
salaries of Y and Z, the PBS considered their current salaries and/or
other job offers.<9> The notion that ACP would have failed to notice
that complainant's previous agency salary was $11,000 greater is not
worthy of belief, given his clear openness to considering evidence of
previous salary and job offers when male applicants were involved. The
testimony of CP and ACP that they were not aware that complainant was paid
a higher amount at a different agency facility and that it was logical
to offer her a job at the same position and grade is equally unworthy
of belief. Both CP and ACP have worked at the VA for over 13 years and
both acknowledged awareness of the fact that different facilities paid
greater salaries for the same grade and step.
The record establishes that when white male pharmacists applying for the
same job as complainant provided evidence that they could obtain more
money elsewhere, that evidence was considered. When the application
of complainant--a Black female--clearly noted that she was paid more
than $57,000 at her previous agency job, that information was somehow
overlooked and her salary offer of $46,641 was based solely on her
previous grade and step. After reviewing the agency's reasons for these
differences, the only believable explanation for the lower salary offered
to complainant is her race and sex. Moreover, the agency does not even
attempt to explain why complainant, a black female, is paid less than
the three male GS-11s, two White and one Asian American, other than Y.
Accordingly, we find that complainant has established that she was
subjected to sex and race discrimination in violation of Title VII when
she was paid at a lower rate than four GS-11 non-Black males within
Pharmacy Services.
Nonselection
Complainant also alleged that she was not selected for the position of
Pharmacist Team Leader, Outpatient Pharmacy, GS-12, due to her race and
sex. The agency acknowledged that complainant established a prima facie
case of discrimination, noting that she is a member of protected groups,
applied and was qualified for the position in question, and was not
selected in favor of a White male.
The agency must therefore articulate a legitimate nondiscriminatory reason
for not selecting complainant. While the agency's burden of production
is not onerous, Commission precedent holds that the agency must set
forth, with sufficient clarity, reasons for its actions such that
complainant has a full and fair opportunity to demonstrate that those
reasons are pretext. See Parker v. United States Postal Service, EEOC
Request No. 05900110 (April 30, 1990); Lorenzo v. Department of Defense,
EEOC Request No. 05950931 (November 6, 1997). Here, ACP testified and
CP confirmed that the selectee (S1) had 27 years of experience as a
pharmacist and that complainant had only 10 years. The agency concluded
in the FAD that S1 was selected due to his greater experience.
The articulation offered by the agency does not give complainant the
opportunity to attempt to satisfy her ultimate burden of proving
the explanation is pretextual. She cannot begin to show that her
qualifications are observably superior, as the record does not indicate
what S1's qualifications were, other than his years of experience.
The Office of Federal Operations has noted in past cases that more years
of experience does not necessarily make an individual more qualified
than others. See McGettigan v. Department of the Treasury, EEOC Appeal
No. 01924372 (February 24, 1993); Ford v. Department of Health and
Human Services, EEOC Appeal No. 01913521 (December 19, 1991). We find,
therefore, that in order to meet its burden, the agency should have come
forward with more specific testimony as to how S1's greater number of
years of experience made him more qualified. At the very least, the
agency should have included a copy of S1's application and/or resume
in the investigative file so that complainant could have attempted to
establish that her experience was greater.
Even assuming that the agency's articulation is sufficient, complainant
has established that it is pretextual. We have already determined that
the agency allowed discriminatory animus to affect its treatment of
complainant when ACP determined her salary offer. This fact does not
lead us to easily accept the agency's claims that the selection process
directed by ACP was free of discrimination. Moreover, background evidence
establishes that complainant was denied a promotion in favor of a White
male under suspicious circumstances in the past. In October 1996, the
position of Pharmacy ADP Coordinator opened and ACP e-mailed the Pharmacy
Service employees noting that anyone interested should apply by October
18, 1996. Complainant timely responded, indicating her interest.
A second e-mail went out on October 21st asking that interested
parties respond with the qualifications and goals by October 23rd.
Complainant did so. A White male who failed to respond by October
23rd, but instead indicated near the end of the day on the 23rd that
he did not have time to respond, was selected for the position (S2).
Copies of e-mail in the record indicate that when ACP did not receive a
response from S2 by the afternoon of October 23rd , he sent out another
email asking if he had missed anyone's responses. When S2 indicated
that he did not have time to respond, he was given an extension.
When an applicant other than complainant mentioned that this seemed
odd, ACP replied (via e-mail) that it was normal. He then selected S2.
Complainant testified that she was more qualified for this ADP position
given her knowledge of computers and her general experience which she
felt was greater than S2s. Although there is little evidence in the
record in regard to this incident, it provides additional evidence that
ACP gave special consideration to White males. This evidence, together
with the agency's limited articulation that provided complainant with
no opportunity to demonstrate her claimed superiority to S1, and the
agency's demonstrated willingness to discriminate against complainant
based on her race and sex, we find that complainant has established that
her non-selection for the position of Pharmacy Team Leader, Outpatient
Pharmacy, was motivated by discriminatory animus.
Remedy
We 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. An individual may recover
under both the EPA and Title VII for the same period of time so long as
the individual does not receive duplicate relief for the same wrong.
Relief is computed to be the highest benefit either statute would
provide. See Telford, supra. An employer who violates the EPA must
remedy that violation not only by awarding the affected employee the
difference between the salary she received and the salary she should
have received, retroactive to the date the violation began, but also by
awarding the employee an additional equal amount as liquidated damages.
See 29 U.S.C. � 216(b); see also Miller v. Department of the Navy,
EEOC Appeal No. 01943457 (December 8, 1995). 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 an 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.� Here, we have found that the salary differential between
complainant and her male comparators was willful and the agency provided
no legitimate grounds that it acted in good faith. An award of liquidated
damages is therefore appropriate and will be discussed in the ORDER below.
See Telford, supra.
CONCLUSION
Accordingly, after a thorough review of the record, including
complainant's arguments on appeal and arguments and evidence not
specifically addressed in this decision, the agency's finding of no
discrimination is REVERSED.
ORDER
The agency is ORDERED to take the following remedial action:
Within sixty (60) calendar days of the date this decision becomes
final, the agency shall offer to promote complainant to the position of
Pharmacist Team Leader, Outpatient Pharmacy, GS-12, or a substantially
similar position. Complainant shall be given a minimum of fifteen (15)
calendar days from receipt of the offer within which to accept or decline
the offer. Failure to accept the offer within the time period set by the
agency will be considered a rejection of the offer, unless complainant
can show that circumstances beyond her control prevented a response
within the time limit. Such promotion shall be retroactive to May 7,
1997, the date on which complainant should have been promoted.
The agency shall determine the appropriate amount of back pay, interest
and other benefits due complainant, pursuant to 29 C.F.R. � 1614.501,
no later than sixty (60) calendar days after the date this decision
becomes final. If complainant declines to accept the promotion with
the agency, the back pay period for the Pharmacist Team Leader position
shall end on the date she declines the offer of promotion.
The agency is also directed to award complainant back pay, with interest,
and benefits for the difference between the GS-11, Step 7 salary she
received and the GS-11, Step 10 salary she should have received between
September 12, 1996 and May 7, 1997, the date on which she should have
received the promotion to the Pharmacist Team Leader position. The agency
is further directed to pay complainant an additional equal amount as
liquidated damages for its violation of the EPA. See 29 U.S.C. � 216(b).
If complainant declines to accept the offer of promotion to the Pharmacist
Team Leader position, the agency shall continue to pay complainant the
GS-11, Step 10 salary. Complainant shall cooperate in the agency's
efforts to compute 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 complainant for the undisputed amount within sixty (60)
calendar days of the date the agency determines the amount it believes
to be due. Complainant may petition for enforcement or clarification
of the amount in dispute. The petition for enforcement or clarification
must be filed with the Compliance Officer, at the address referenced in
the statement entitled �Implementation of the Commission's Decision.�
The agency shall take corrective, curative and preventative action
to ensure that sex and race discrimination do not recur, including,
but not limited to, providing training to CP and ACP in the law against
employment discrimination. This action shall also include taking steps
to ensure that, in the future, the Professional Services Board provides
an equally thorough review of each applicant's information so that
salary offers are not based on sex, race, or other protected categories.
To further this goal, the agency shall ensure that all employees who
serve on the PSB are trained in the law against employment discrimination
and told that all applications must receive the same level of review.
The agency shall also take steps to ensure that its policy for setting
salaries is in compliance with the EPA, Title VII, and other employment
discrimination laws.
In addition, the agency shall consider complainant's claim for
compensatory damages incurred as a result of the discriminatory
non-selection.<10> Within thirty (30) calendar days of the date
this decision becomes final, the agency shall notify complainant of
her right to present evidence to the agency regarding her claim for
compensatory damages in connection with her non-selection. Complainant
shall provide evidence that the damages claimed are a result of the
agency's discrimination and evidence of the amount of claimed damages.
Within thirty (30) calender days of submission of such evidence, the
agency shall issue a final agency decision on this issue, with appropriate
appeal rights to the Commission. The Commission further orders that the
agency consider complainant's right to any additional attorney's fees
and costs in connection with this appeal and the submission of evidence
in connection with her claim for compensatory damages.
The agency shall award reasonable attorney's fees, as set forth below.
The agency shall post the attached notice, as set forth below.
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 and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Biloxi, Mississippi 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.
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.
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 2, 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, 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., has occurred at the Department of Veterans
Affairs Medical Center in Biloxi, Mississippi (hereinafter �facility�).
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 facility supports and will comply with such federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was 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 equal work, requiring equal skill, effort and
responsibility. The agency was found to have further discriminated
against this individual when it failed to compensate her at the same
level as similarly situated individuals of different races and when
it failed to promote her. The agency was ordered to: (1) ensure
that this individual receive appropriate back pay, with interest,
and an award of liquidated damages in an amount equal to the back pay
award that stems from the EPA violation; (2) promote complainant to the
position that she was denied, or a substantially similar position; (3)
conduct sensitivity training for the responsible management officials
and to all employees who serve on the Professional Standards Board;
(4) ensure that the Professional Standards Board provides an equally
thorough review of all applications; (5) award compensatory damages,
if applicable; (6) award reasonable attorney's fees, if applicable;
and (7) post this notice.
The facility 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:
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
the 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 agency provided no analysis of complainant's Equal Pay Act claim.
4 There is some confusion in the record as to whether complainant and the
four male GS-11s within Pharmacy Services are called �pharmacists� as
opposed to �staff pharmacists.� The other female GS-11 is referred to
as a �staff� or �fee� pharmacist. Although we are unable to determine
if there is a difference in these positions, there is no dispute that
complainant and the four male GS-11s hold the same position.
5 The FAD refers to Y and Z as the comparators. The record establishes
that there are four male pharmacists in the same position as complainant
within Pharmacy Services. Z is not listed as one of these pharmacists,
but the record does not explain his absence. The agency does not offer
an explanation for the salary differences of the three male GS-11s in
Pharmacy Services, other than Y.
6 We note that we are not implying that a facility must offer an applicant
the same locality pay he or she received in a previous agency position
at a facility which offered greater locality pay. Rather, we find that
in the case at hand, the agency failed to establish that the reason for
the salary difference at issue was not �any other factor other than sex�
when it claimed that the salary difference stemmed from its failure
to consider a female's salary history to the same extent that males'
salary histories were considered.
7 The FAD refers to Y and Z�both white males-- as the comparators.
Z is not shown on the chart displaying the sex, race, grade, salary and
hire date of the pharmacists with Pharmacy Services and his absence is
not explained. The agency does not offer an explanation for the salary
differences of the three non-Black male GS-11s in Pharmacy Services,
other than Y.
8 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.
9 One witness, the President of a AFGE Local 3968 (UP1), testified that
ACP told him that when interviewing male pharmacists, he asked if they
would like more money, but that he did not ask women pharmacists this
question. However, the person named by UP1 as also participating in this
conversation, the President of AFGE Local 1045 (UP2), testified that in
response to a question from UP1 and UP2 as to why male pharmacists were
paid more, ACP replied that males asked for more. UP2's recollection
of the conversation conforms with ACP's testimony that certain male
applicants provided evidence that they could obtain more money elsewhere
and indicated that they would not take pay cuts. In any case, the
evidence establishes that the PBS considered evidence that non-Black
male applicants could make or had made greater salaries at other jobs
in determining what salaries to offer.
10 Although complainant did not request compensatory damages for the
wage discrimination, she did request �$10,000 compensation� in connection
with her non-selection.