[Redacted], Lilla B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 7, 2023

Appeal No. 2021003587 (E.E.O.C. Feb. 7, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lilla B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021003587 Hearing No. 430-2020-00024X Agency No. 2004-0558-2019101696 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 20, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Prosthodontist at the Agency’s Durham VA Medical Center in Durham, North Carolina. On May 3, 2019, Complainant filed a formal EEO complaint alleging she was discriminated against based on sex (female), when, since 2017, she has not received equal pay for equal work as compared to males in her position. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2021003587 2 Following an investigation into the accepted claim, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On April 20, 2020, the Agency filed a motion for summary judgment. On May 18, 2021, the AJ adopted the Agency’s motion and issued a final decision by summary judgment, over Complainant’s objection, in favor of the Agency. On May 20, 2021, the Agency issued a final order adopting the AJ’s decision finding no violation of the EPA or discrimination under Title VII was established. The instant appeal followed. On appeal, Complainant, through counsel, argues that the Agency’s actions regarding Complainant’s salary in comparison to three male colleagues was willful. Specifically, Complainant asserts that the Agency has failed to establish that the wage differential was justified by one of the four affirmative defenses set forth in the EPA. Additionally, Complainant argues that she also prevails on her Title VII claim because the Agency’s articulated reasons for the wage discrepancy are pretext for discrimination. ANALYSIS AND FINDINGS 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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. 2021003587 3 Equal Pay Act Claim 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, Complainant must show that she received less pay than a male employee 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 (Sept. 12, 2000); see also 29 C.F.R. § 1620.14(a). The requirement of “equal work” does not mean that the jobs must be identical, but only that they must be “substantially equal.” Id. (citing Corning Glass Works, 417 U.S. at 203, n. 24; Homer v. Mary Institute, 613 F.2d 706, 714 (8th Cir. 1980); Laffey v. Northwest Airline, Inc., 567 F.2d 429, 449 (D.C. Cir. 1976)). Once Complainant has met this burden of establishing a prima facie case, the Agency 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 measure earnings by quantity or quality of productions of work (also referred to an incentive or piecework system); or 4) a differential based on any other factor other than sex, 299 U.S.C. § 206(d)(1); Corning Glass Works, 417 U.S. at 196-97; Kouba v. Allstate Insur. Co., 691 F.2d 873 (9th Cir. 1982). Here, assuming arguendo that Complainant has established a prima facie case in violation of the EPA, we determine that the AJ correctly found that the Agency has shown the difference in pay between Complainant and her male comparators was justified based on a factor other than sex. Complainant testified that she was hired by the Agency as a Prosthodontist in 2013 with an initial salary of $177,980. Complainant indicated that her salary had increased to $197,358 by 2017. Complainant asserted that in 2017, she became aware of a discrepancy in her pay compared to three male colleagues - a General Dentist and two Prosthodontists (Prosthodontist-1 and Prosthodontist-2). Complainant noted that the General Dentist, by nature of his position, performed different dental services than she did as a Prosthodontist. Specifically, Complainant explained that a General Dentist treats patients by providing “simple procedures” like tooth extractions, an amalgam, or crown which Complainant categorized as a one-step process. In contrast, Complainant indicated that a Prosthodontist performs “mouth rehabilitations” which require several steps, and a Prosthodontist performs several laboratory procedures. Consequently, Complainant did not understand why in 2017, the General Dentist was paid more than she was paid. Complainant asserted that in 2017, the General Dentist had an approximate salary of $197,513 in contrast to her salary of $197,358 as a Prosthodontist. After researching into the matter, Complainant found additional discrepancies among her male Prosthodontist colleagues. Complainant noted that she learned that Prosthodontist-1 was making $197,715 at the time Complainant began working at the Agency in 2013. 2021003587 4 Consequently, Complainant asserted that her starting salary of $177,980 was significantly below Prosthodontist-1’s current salary.2 Complainant further noted that Prosthodontist-2 was hired by Agency in 2017 with a salary of $225,000, also significantly higher than Complainant’s 2017 salary of $197,358. Complainant asserted that she did not understand the discrepancy in salary because she and Prosthodontist-2 had the same specialty and she had completed a General Practice Residency program while Prosthodontist-2 had not, and Complainant had ten more years of clinical experience than Prosthodontist-2. Complainant acknowledged that her salary was increased in 2019 to be “equitable to [her] colleagues.” However, Complainant indicated that contrary to what she was told by the Chief of Staff, no pay panel was convened to approve her increase. Additionally, Complainant clarified that she was never compensated for the backpay during the period she was not adequately compensated, which she still seeks. The Chief of Staff explained that an employee’s salary is determined by three parts: base pay (grade and step), market pay, and performance pay. The Chief of Staff further explained that three elements determine market pay: initial hire, significant change in duties, and periodic assessments (but no more than every twenty-four months). Consequently, the Chief of Staff indicated that employees will, more likely than not, have a different market pay which will have an impact upon the employee’s total compensation and account for differences in compensation. The Chief of Staff noted that there is no expectation that the market pay for all providers be instantaneously adjusted to match that of the new provider. In essence, the market rate at the time of a new hire could increase, but that increase would not automatically trigger an increase for previously hired providers because those individuals would continue their prior market pay until the scheduled twenty-four-month review occurs. Therefore, the Chief of Staff clarified that the twenty-four-month market pay review is the mechanism used to maintain equity among providers who do similar work. In this case, the Chief of Staff stated that Complainant a starting salary of $177,980 in 2013, significantly higher than Prosthodontist-1’s starting salary.3 The Chief of Staff explained that under the pay system, (which includes base pay, market pay, and performance pay) an increase in the employee’s base salary continued to increase based on longevity, resulting in an overall increased compensation even if the market pay remained the same. The record reflects that Prosthodontist-1 was hired approximately thirty-three years before Complainant. His base salary therefore continued to increase over time, reflecting a higher overall compensation at the time that Complainant was hired. 2 Prosthodontist-1 began working at the Agency on August 22, 1980, and retired from the Agency on January 2, 2015. 3 While the record does not show Prosthodontist-1’s actual starting salary, it does show that in 2006, decades after he was hired, he had a salary of $152,957. 2021003587 5 The Chief of Staff also acknowledged that in 2017, Prosthodontist-2 was hired with a higher market pay higher than Complainant who was hired in 2013. The Chief of Staff noted that Prosthodontist-2’s market rate was based on his unique circumstances. Specifically, the Chief of Staff explained that Prosthodontist-2 was previously hired at another VA facility and would not relocate to the Durham VA facility at a reduced salary. The Chief of Dental Service offered Prosthodontist-2 the equivalent salary to the he had while working at the Agency’s Medical Center in Arkansas in order to attract him to the much-needed vacant position. Nevertheless, the Chief of Staff indicated that the market review, scheduled for 2019, would allow for appropriate adjustments to reconcile the disparity in pay. Consequently, the Chief of Staff asserted that this reconciliation would have occurred regardless of Complainant’s complaint, as the twenty-four-month market pay review was already in place by Agency policy to address this issue. Ultimately, the Chief of Staff stated that Complainant’s compensation was reevaluated, and she currently is compensated at a higher rate than other Prosthodontists who perform similar work. Regarding pay discrepancies with the General Dentist, the Chief of Staff noted that the General Dentist was categorized as a Tier 2 dentist for his supervisory/programmatic duties while Complainant was categorized as a Tier 1 dentist because her position did not include the additional programmatic lead/supervisor duties. As a result, Tier 2 dentists, in this case the General Dentist, received a higher compensation than Tier 1 dentists, such as Complainant. The Chief of Staff asserted that Tier 1 and Tier 2 dentists were not comparable positions. Nevertheless, the Chief of Staff indicated that at the time of Complainant’s 2017 market pay review, Complainant received a market pay increase, and Complainant had an overall higher compensation than three male Tier 1 General Dentists and one female Tier 2 General Dentist. 4 Moreover, as previously discussed above, employee performance also had an impact upon overall compensation. Here, the Chief of Dental Service explained that Complainant’s compensation was partially set based on her performance.5 The Chief of Dental Service explained that Complainant, as well as all Dentists and Prosthodontists, were required to earn 86,500 Relative Value Units (RVUs) per year.6 The RVUs were used to measure the Dentists’ and Prosthodontists’ performance by valuing (counting) the number of procedures performed. 4 The Chief of Staff clarified that Prosthodontist-2 was hired after the completion of Complainant’s 2017 market pay review. 5 The Chief of Dental Service testified that he was hired at the Agency one year after Complainant was hired and was not involved in the process of offering Complainant her initial salary, which she accepted. 6 Complainant argued that it was easier for the General Dentist to complete more RVUs because his duties only involved one step opposed to her duties that required multiple steps. The Chief of Dental Service, however, indicates that General Dentists and Prosthodontists, per Agency policy, were subjected to the same RVU performance measure. 2021003587 6 In Complainant’s case, the Chief of Dental Service indicated that Complainant never earned the necessary RVUs for performance pay increases even though he had provided Complainant work accommodations to help improve her numbers. By 2017, the Chief of Dental Service explained that Complainant and another male provider had not met the 86,500 RVU goal, and neither one of them received the $10,000 increased performance pay. Consequently, the Chief of Dental Service reasoned that Complainant should not receive back pay for the period she alleged the pay discrepancies because she had not met her RVU performance numbers at the time. However, the Chief of Dental Service stated that Complainant subsequently increased RVU numbers and received a performance increase. In sum, the evidence of record established that the General Dentist had a higher compensation, in part, because he earned his RVUs and because he had worked at the Agency longer than Complainant. These matters, in turn, resulted in an increase of his base salary over time. Additionally, the General Dentist had leadership experience, including serving as Director of the Residency Program and serving as Assistant Chief of Dentistry. Similarly, Prosthodontist-1 had worked at the Agency far longer than Complainant, was Board certified (unlike Complainant), had performed additional duties as Service Chief during his tenure, and had more responsibilities than Complainant, which would have increased his overall salary. Finally, the record reflects that Prosthodontist-2’s salary was established based on his prior salary at another VA Medical Center which was matched in order to attract him to come to the needed position. Consequently, the evidence shows that a combination of increased base salary overtime, job duties/experience, pay increases based on his performance, and unique circumstances of hire, rendered the General Dentist and Prosthodontists-1 and 2 having a higher salary than Complainant, none of which are attributable to Complainant’s sex. Disparate Treatment Under Title VII A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 2021003587 7 Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The AJ properly determined that the Agency articulated legitimate, non-discriminatory reasons for Complainant’s pay discrepancy. As previously discussed, the record indicates that Complainant and the General Dentist had different positions, were classified in different tiers, and as Complainant described in her testimony, a comparison between their duties was analogous to comparing “apples to oranges.” Consequently, the differences in position and duties between Complainant and the General Dentist resulted in different salaries. Moreover, the record reflects that Prosthodontist-1 had worked at the Agency for over thirty years before Complainant was hired in 2013, was Board certified, and served as Service Chief during his tenure which would have, over time, resulted in him having a higher salary than Complainant. Prosthodontist-2’s salary was determined based on his prior salary at another Medical Center and the market pay at the time of his hire had changed since Complainant was hired in 2013. Additionally, the record supports that Complainant initially did not receive performance pay increases because she failed to meet the performance standards which also impacted her overall compensation. Ultimately, the record indicates that Complainant was able to meet these standards, and thereafter, receive her performance increase. Finally, the record reflects that following Prosthodontist-2’s hiring, a market pay review, the Agency’s internal mechanism for ensuring equity maintain equity among providers who do similar work, resulted in Complainant receiving a salary comparable to Prosthodontist-2. After careful consideration of the record, we conclude that Complainant has failed to prove, by a preponderance of the evidence, that any differences between her salary and that of the male comparators was based on her sex. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish violations of the Equal Pay Act or Title VII occurred. 2021003587 8 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021003587 9 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 7, 2023 Date