02a40002
03-25-2005
Nancy K. West, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Nancy K. West v. Department of the Air Force
02A40002
03-25-05
.
Nancy K. West,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 02A40002
Agency No. AL 200021489
DECISION
Nancy K. West (complainant) filed an appeal from the Arbitration Opinion
and Award issued on August 21, 2003, finding: (1) that the agency
violated Article 13 of the Collective Bargaining Agreement (CBA); (2)
that the CBA authorized back pay for twenty days prior to notice of the
violation; and (3) that the agency did not violate the Equal Pay Act of
1963 (EPA), as amended, 29 U.S.C. � 206(d) et seq. The appeal is timely
filed (see 29 C.F.R. � 1614.402(a)) and is accepted in accordance with
29 C.F.R. � 1614.405.
The EPA was enacted to remedy the problem of sex-based wage
discrimination; it stands for the straightforward proposition that
"employees doing equal work should be paid equal wages, regardless
of sex." Corning Glass Works v. Brennan, 417 U.S. 188 (1974); Sheppard
v. Equal Employment Opportunity Commission, EEOC Appeal No. 01A02919
(September 12, 2000); see also 29 C.F.R. � 1620.14(a). The EPA mandates
that an employer not discriminate "between employees on the basis of sex
by paying wages to employees ... at a rate less than the rate [paid]
... to employees of the opposite sex ... for equal work on jobs the
performance of which requires equal skill, effort, and responsibility, and
which are performed under similar working conditions ...." 29 U.S.C. �
206(d)(1) (1978).
In Corning Glass, supra, the Supreme Court articulated the requirements
for establishing a prima facie case of discrimination under the EPA.
A complainant must show that s/he 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., 417 U.S. at 195. While a complainant need not show
a discriminatory intent to establish a prima facie violation of the EPA,
nevertheless, s/he must present probative evidence of the elements of a
prima facie case. Id; see Miller v. Department of the Navy, EEOC Appeal
No. 01943457 (December 8, 1995).
After review of the record before us, we find that it lacks probative
evidence and is insufficient to demonstrate a violation of the EPA.
Complainant has not presented any information or data to establish a
prima facie case, either in the record or with her appeal. In the record
before us, the union, on behalf of complainant, argued in summary fashion
that she performed higher-level work for an extended time period but
was not paid the same as male employees in her work area. Similarly,
her appeal only stated that she showed a violation but does even allude
to the evidence presented. Since it was complainant's obligation
to present a prima facie case, and she has not done so, we find that
the preponderance of the evidence of record does not establish that a
violation of the EPA occurred.<1>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
_____03-25-05_____________
Date
1We note that complainant did not raise a claim under Title VII.