0120070334
04-16-2009
Patricia S. Ford, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Patricia S. Ford,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120070334
Hearing No. 410-2006-00150X
Agency No. 2001-0509-2004101551
DECISION
Complainant filed an appeal from an agency's final action dated September
28, 2006, finding no discrimination with regard to her complaint.
In her complaint,1 complainant alleged that the agency violated the
Equal Pay Act (EPA) by paying her at the GS-6 level for her Supply
Technician position when it paid male Supply Technicians at the GS-7
level. The record indicates that at the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
On August 23, 2006, the AJ, after a hearing, issued a decision finding no
discrimination, which was implemented by the agency in its final action.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
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 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; Sheppard v. Equal Employment Opportunity
Commission, EEOC Appeal No. 01A02919 (September 12, 2000); see also 29
C.F.R. � 1620.14(a).
Complainant claimed that she performed the same duties as the male NX
Technicians within the Veterans Integrated Systems Network (VISN) 7, but
the males were graded at GS-7 at VAMC Dublin, Georgia, VAMC Columbia,
South Carolina, VAMC Birmingham, Alabama, and other VA facilities
within the network. However, the agency stated that complainant,
as GS-6, did not perform the same duties which GS-7s performed, i.e.,
preparing requisitions for submission to the VA Central Office on highly
sophisticated technical equipment; assisting or serving as a backup for
the Inventory Management Specialist; performing unusually difficult
document controlled assignments requiring extensive and exhaustive
searches for required information and reconstruction of records with
complex supply transactions; and, being responsible for managing,
coordinating, and controlling a variety of supplies and equipment required
to support the operations of the Medical Center.
The AJ noted that the survey made by the investigator of the other
Supply Technicians in the complainant's geographic area, southeast,
reflected a male GS-5 and a male GS-6, two female GS-7s; thus, there
was no pattern of males in the Supply Technician classification being
paid more than females. The AJ also noted that complainant's position
description was previously submitted for a classification review and,
each time, came back graded at the GS-6 level. After considering all
the evidence, the AJ determined, and we agree, that complainant failed
to establish a prima facie case of wage discrimination based on her sex.
Upon review, we find that complainant failed to establish that she was
being paid less than the rate paid to male employees for equal work,
requiring equal skill, effort and responsibility, under similar working
conditions within the same establishment.
The agency's final action is AFFIRMED because the AJ's decision is
supported by substantial evidence.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
4/16/09
__________________
Date
1 The record indicates that the instant complaint was previously dismissed
by the agency. Upon appeal, the Commission, in EEOC Appeal Nos. 01A53982
& 01A53042 (November 23, 2005), request for reconsideration denied,
EEOC Request Nos. 05A60314 & 05A60315 (February 14, 2006), remanded
the complaint to the agency for a supplemental investigation after
finding that complainant had raised an Equal Pay Act claim when she
alleged wage-based discrimination which the agency previously did not
investigate. This Equal Pay claim is at issue before us. In our prior
decision we affirmed the dismissal of the remainder of the complaint.
Ford v. Department of Veterans Affairs, EEOC Appeal Nos. 01A53982 &
01A53042, request for reconsideration denied, EEOC Request Nos. 05A60314 &
05A60315.
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0120070334
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013