0120113139
02-12-2013
Minza M. Shiraki-Higa, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Minza M. Shiraki-Higa,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120113139
Hearing No. 480-2008-00342X
Agency No. 060060402186
DECISION
On June 9, 2011, Complainant filed an appeal from the Agency's May 9, 2011, final order concerning her equal employment opportunity (EEO) complaint alleging 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., and the Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. � 206(d) et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Materials Expeditor at the Agency's Fleet and Industrial Support Center facility in Pearl Harbor, Hawaii.
On November 29, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when, on August 7, 2006, the Deputy Director ("DD", male) offered Complainant the position of General Supply Specialist, GS-2001-09 at Step 5 rather than at a higher step level.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and, over Complainant's objections, issued a decision without a hearing on April 1, 2011.
The AJ found that the following undisputed facts based on the investigation. In 2004, due to a reduction-in-force (RIF), Complainant was reassigned from her then-position as a Supply Technician, GS-7, Step 9, to a Lead Supply Technician, GS-7, Step 9, and then two months later, to a Materials Expediter position, WG-7, Step 5. Prior to the RIF, three male coworkers (CW1, CW2, & CW3) had been Equipment Specialists, GS-9, Steps 8, 9, and 10 respectively. Following the RIF, these three were reassigned to the position of Materials Expediter, WG-7, Step 10. In July 2006, they were again reassigned, this time from their Materials Expediter positions to the position of General Supply Specialist, GS-9. CW1 was placed at the Step 9 level, and CW 2 and 3 were placed at the Step 10 level. Complainant does not appear to dispute that because she had never held a G- 9 position, she was not reassigned to the General Supply Specialist position along with CW 1, 2 and 3, but was required to compete for the position. Upon her successful application, she was selected for the position.
The AJ found that Complainant failed to establish a prima facie case of disparate treatment because she failed to identify similarly situated male comparators who were treated differently. Specifically, the AJ found that CW 1, 2 and 3 were not similarly situated with Complainant because they already held a GS-9 position while Complainant, a GS-7, was required to compete for her GS-9 position. The AJ did not address Complainant's claim under the Equal Pay Act.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. 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. 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 v. Catrett, 477 U.S. 317, 322-23 (1986); 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Title VII Claim
Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804.
In order to establish a prima facie case, a complainant may show that she is a member of a protected class, that she was subjected to adverse treatment, and that she was treated differently than otherwise similarly situated employees outside of the protected class. See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975).
The AJ found that Complainant failed to establish a prima facie case because she failed to show she was treated differently than otherwise similarly situated employees outside of her protected class. Specifically, the AJ found that the three male comparators identified by Complainant were not similarly situated with her because DD, who offered Complainant the position at Step 5, was not responsible for the higher step levels awarded the comparators. Instead, the AJ found, their step levels "were determined based on their RIF-related pay retention rights . . . and there is no evidence whatsoever that the RIF-related pay retention rights were biased in favor of males or against females." AJ's Decision, p. 10.
On appeal, Complainant does not address the AJ's finding that Complainant was not similarly situated with CW 1, 2 and 3, nor did Complainant address the issue in her opposition to the AJ's notice of intent to issue a decision without a hearing. Instead, Complainant argues that DD incorrectly calculated her pay rate under the GS system. We note that the record shows that CW 1, 2 and 3 were not similarly situated with Complainant because before the RIF they had held GS-9 positions, which meant they obtained their General Supply Specialist positions through reassignment, while Complainant, who had never held a GS-9 position, had to apply for her General Supply Specialist position. We therefore find no basis to disturb the AJ's finding that Complainant was not similarly situated with CW 1, 2 and 3 and therefore has not established a prima facie case of sex discrimination.
Equal Pay Act Claim.
The AJ failed to address Complainant's claims under the EPA. We interpret this omission as indicating that the AJ found that Complainant failed to show a violation of 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 he or she received less pay than an individual of the opposite sex for equal work, requiring equal skill, effort and responsibility, under similar working conditions within the same establishment. Id. at 195; see also 29 C.F.R. � 1620.14(a).
Once a complainant has met the burden of establishing a prima facie case, an employer may avoid liability only if it can be proven that the pay difference is justified under one of the four affirmative defenses set forth in the EPA, namely; 1) a seniority system; (2) a merit system, (3) a system which measures earnings by quantity or quality of production of work (also referred to as an incentive or piecework system) or 4) a differential based on any factor other than sex. 29 U.S.C. 206(d)(1); Corning Glass Works, 417 U.S. at 196-97. The requirement of "equal work" does not mean that the jobs must be identical, but only that they must be "substantially equal."
Following a review of the record we find that the pay difference can be justified under prong (4), a differential based on any factor other than sex. As the AJ found with respect to Complainant's Title VII claim, the pay difference after the RIF, when Complainant and the male employees were reassigned to the same job at the same grade, but different step levels, was justified based on their relative RIF-related pay retention rights, including the fact that the male comparators had occupied GS-9 positions, while Complainant had been a GS-7. Accordingly Complainant has not shown a violation of the EPA.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has neither established the presence of an issue of material fact requiring resolution through a hearing, nor has she shown a violation of Title VII or the EPA. Accordingly, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 12, 2013
__________________
Date
2
0120113139
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113139