[Redacted], Vickie T., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (Office of the Secretary), Agency.

Equal Employment Opportunity Commission

Aug 8, 2022

Appeal No. 2021002444 (E.E.O.C. Aug. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vickie T.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Office of the Secretary), Agency. Appeal No. 2021002444 Hearing No. 570-2018-00189X Agency No. HHS-OS-0045-2017 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s 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 (EPA) of 1963, as amended, 29 U.S.C. § 206(d) et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Attorney, GS-13, at the Agency’s Office of Medicare Hearings and Appeals (OMHA) in Falls Church, Virginia. On July 21, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on sex (female) and in reprisal for prior protected EEO activity when: 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. 2021002444 2 1. Since November 15, 2015, Complainant has been paid at a lower grade level (GS-13) than a similarly situated male employee (Coworker 1) who is paid at the GS-14 level; 2. In November 2015, Complainant’s former supervisor (S1A), Executive Director, SES, provided Complainant with a position description (PD) reflecting GS-13 level work related to quality assurance and ethics which management did not intend Complainant to perform for any substantial period of time; 3. Since November 2015, Complainant has been performing GS-14 level work related to Labor Relations/Employee Relations (LR/ER) that is not reflected in her PD; 4. In January 2016, S1A provided her with a performance plan (PMAP) reflecting an assigned workload of 100% LR/ER related work (none of which is reflected in her PD); 5. In January 2016, S1A provided Coworker 1 his PMAP with an assigned workload nearly identical to Complainant’s assigned workload reflecting 100% LR/ER related work; 6. In February 2016, S1A hired another LR/ER employee (part-time) at the GS-14 level (Coworker 2) to perform substantially similar work to that of Complainant; 7. In March 2016 and July 2016, Complainant informed S1A that her PD did not reflect the duties she performed (each time S1A acknowledged that she was aware of the situation); 8. In or around April 2016 through June 2016, management acted or spoke inappropriately to Complainant when the following occurred: a. During a teleconference in which Complainant was seated on the other side of S1A’s desk, S1A grabbed Complainant’s pen out of her hand, slammed it onto management’s desk and shoved another pen into Complainant’s hand, stating, “Use this; your pen squeaks too much”; b. During an LR/ER staff meeting, S1A asked all three LR/ER staff members for feedback (Complainant, Coworker 1, and Coworker 2) and as Complainant began providing her feedback, management abruptly cut her off, stating in front of the other two LR/ER staff members, “Now don’t go spouting off”; 9. Since July 2016, Complainant’s new supervisor (S1B), Director of Human Resources Center, GS-15, told Complainant on multiple occasions that management was aware she performed GS-14 level work and that management was working on Complainant’s promotion; and in fact, even S1A had intended to promote Complainant to a GS-14 grade level; 10. On May 4, 2017, Complainant’s second-line supervisor (S2), Director, Executive Support & Resources Division, GS-15, informed Complainant that management had no intention to promote her to the GS-14 grade level; and 11. From mid-May 2017 to present, Complainant has felt increased retaliation when the following examples occurred: a. Management has increasingly monitored and criticized her work; 2021002444 3 b. Management increasingly requested briefings and levels of details that did not occur before her EEO complaint; and c. Management represented Complainant’s duties on a new OMHA LR/ER organizational chart provided to the Agency’s Office of Human Resources implying a diminished level of importance from the level represented before her EEO complaint. 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 requested a hearing. Subsequently, Complainant withdrew Claims 5 through 10. After both parties submitted motions for a decision without a hearing,2 the AJ assigned to the case issued a decision by summary judgment in favor of the Agency on the remaining claims (Claims 1 - 4 and 11). When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. The AJ found that Coworker 1 was hired as a Program Analyst, Employee and Labor Relations, GS-14, after applying to an advertised vacancy announcement and was selected from two other candidates for the position. Complainant’s hiring was not based on a vacancy announcement. S1A sought to hire Complainant to work on labor and employee relations matters, but she used a GS-13 attorney PD in order to expeditiously and non-competitively hire Complainant under the excepted service authority. The attorney position through which Complainant was hired did not go past the level of GS-13. The AJ concluded that, regarding Claim 1, Complainant had failed to establish a prima facie case under the EPA. The AJ found that Complainant had not met her burden to show that she and Coworker 1 performed substantially equal work. While their jobs did overlap-Coworker 1 averred their duties were about 70% the same-the record showed that a significant portion of Coworker 1’s job duties included work on union issues and negotiations, while Complainant’s duties included being the point of contact in her division for the Agency’s EEO and reasonable accommodation issues. S1B wrote “closeout” narratives for Complainant and Coworker 1’s performance evaluations at the end of 2016, written specifically to each employee explaining their respective ratings for each performance element. While their performance elements were the same, Coworker 1’s closeout narrative described him as “the lead for negotiations and interactions with the union” and that he “handled all of the negotiations for our space actions and handled issuing required notices to the union as warranted.” S1B described Coworker 1’s “solid understanding of the CBA [collective bargaining agreement]” and ability to “provide thoughtful analysis of the agreement when called upon.” She also said he “demonstrated [his] strong background in 2 Complainant filed a Motion for Partial Summary Judgment, while the Agency filed a Motion for Summary Judgment on all of Complainant’s claims. 2021002444 4 labor relations through [his] lead of space negotiations for OMHA” and exercised “discretion and a balance of give and take when working with union officials and managers” and that he cotaught LR/ER training to new managers. Complainant’s closeout narrative did not mention any participation in union or space negotiations, but instead discussed her ability to deal with LR/ER matters including “grievances, information requests, and performance and conduct matters,” as well as “disciplinary and adverse actions, counseling memoranda and alternative discipline agreements.” S1B described Complainant’s “strong relationships . . . built with field managers, HQ[’]s managers, as well as OGC [Office of General Counsel], EEOCO [Equal Employment Opportunity Compliance and Operations] and other agency personnel” and her work on OMHA’s “policies on leave and anti-harassment/bullying” and the Family Medical Leave Act (FMLA). Complainant was also involved in “researching case law, drafting interview questions for administrative investigations, developing notice templates, and obtaining quick responses on complex LR/ER issues.” She also “contributed to . . . processes involving voluminous records and documentation, including FOIA requests, and EEO claims.” Lastly, Complainant performed work involving “adverse actions, litigation concerns, including potential settlement issues and review of settlement agreements.” The AJ highlighted S1B’s description in the closeout narrative that Complainant’s work was conducted “behind the scenes.” Affidavits from S1B, S2, Coworker 1, Coworker 2, and Human Resources Specialist, GS-13 (Coworker 3) confirmed that while Complainant and Coworker 1 had similar duties, Complainant was more involved in EEO claims and reasonable accommodation issues, while Coworker 1 was more heavily involved in union negotiations/interactions and drafting Memoranda of Understanding. The record further showed that Complainant at most assisted Coworker 1 with some of these duties. The AJ therefore found that Complainant had “not put forth sufficient evidence that her job constitutes ‘equal work’ to that of” Coworker 1. Analyzing Complainant’s claims under Title VII, the AJ found that, regarding Claim 1, Complainant failed to demonstrate that similarly situated individuals outside her protected classes were treated more favorably. As to Claims 2, 3, and 4, the AJ found that Complainant failed to set forth evidence showing that the inaccurately assigned work listed in her PD or PMAP were based on her protected classes, and that her “personal belief, and conclusory allegations alone are insufficient to show pretext.” Regarding Claim 11, which involved allegations of retaliation, the AJ concluded that, even taking the allegations as true, the incidents did not “create a chilling effect [on participation in EEO activity] necessary” to rise to the level of reprisal. The AJ further determined that the record was devoid of evidence that any of the alleged incidents were the result of discriminatory or retaliatory animus. ANALYSIS AND FINDINGS 2021002444 5 The Commission’s regulations allow an AJ to grant summary judgment when she or he finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review. . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). Regarding Claim 1, the United States 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 (1974). To establish a prima facie case of a violation under the EPA, a complainant must show that she or 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. Sheppard v. EEOC, EEOC Appeal No. 01A02919 (September 12, 2000), req. for recons. denied, EEOC Request No. 05A10076 (August 12, 2003). Once a complainant has met this burden, an employer may avoid liability only by showing that the difference in pay is justified under one of the four affirmative defenses set forth in the EPA: (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. Id. The EPA permits a compensation differential based on a factor other than sex. In order to establish this defense, an Agency must establish that a gender-neutral factor, applied consistently, in fact explains the compensation disparity. EEOC Compliance Manual, Chapter 10: Compensation Discrimination, No. 915.003, (EEOC Compliance Manual) at 10-IV (December 5, 2000). The Agency must also show that the factor is related to job requirements or otherwise is beneficial to the Agency’s business and used reasonably in light of the Agency's stated business purpose as well as its other practices. Id.; Complainant v. Dep’t of Homeland Security, EEOC Appeal No. 0720040139 (May 7, 2007), req. for recons. den., 0520070616 (July 25, 2007). “Employers can offer higher compensation to applicants and employees who have greater education, experience, training, or ability where the qualification is related to job performance or otherwise benefits the employer’s business.” EEOC Compliance Manual at 10-IV. The Commission has noted that such a qualification would not justify higher compensation if the employer was not aware of it when it set the compensation, or if the employer does not 2021002444 6 consistently rely on such a qualification. Id. Furthermore, the difference in education, experience, training, or ability must correspond to the compensation disparity. Id. The Commission has recognized that continued reliance on pre-hiring qualifications is less reasonable the longer the lower paid employee has performed at a level substantially equal to, or greater than, his or her counterpart. Id. Upon review, we agree with the AJ’s determination that Complainant failed to establish a prima facie case of discrimination under the EPA because she failed to show that she performed work that was substantially equal in skill, effort, and responsibility to the work performed by another employee of the opposite sex. Complainant compared herself to one male employee, Coworker 1. The record reveals that Complainant did not take a primary role in union negotiations; nor was she expected to conduct such negotiations. Her work, as evidenced by the contemporaneous evaluation closeout narrative, included duties related to EEO law, reasonable accommodation, and FMLA. Coworker 1’s duties were more heavily concentrated on union negotiations, drafting union notices, and leading local negotiations related to space/office issues. While all employees within the relevant division shared a common core of duties related to LR/ER, Coworker 1’s areas of focus largely differed from Complainant’s focus, whose responsibilities were more related to EEO and other legal issues than Coworker 1’s, whose duties were more related to labor issues and negotiations. On appeal, Complainant points to several witness statements as evidence that a genuine dispute of material fact exists as to whether her and Coworker 1’s jobs were substantially equal. Coworker 2 averred that “everyone in [the office] performs the same duties,” “[a]ssignments were not made based on the difficulty of the issue but on what field office you serviced,” and that, to her knowledge, “the only difference between [Coworker 1] and [Complainant] was the difference in sex.” Coworker 2 acknowledged, however, that Complainant “was more involved in Reasonable Accommodations and [Coworker 1] in Negotiations.” While Coworker 2 perceived Complainant and Coworker 1 as performing the same job, she also confirmed the same differences in their duties that management noted in their own affidavits and in the closeout narratives. Similarly, Complainant points to Coworker 3’s affidavit in support of her contention that she and Coworker 1 performed the same jobs. Coworker 3 stated that Complainant “should be a GS-14. She was doing the same work as [Coworker 1] and [Coworker 2], and they are both GS-14s.” However, despite his contention that Complainant and Coworker 1 did the same work, Coworker 3 confirmed the same differences in job duties the AJ identified: “[Coworker 1] did a lot of the same work as [Complainant]. Some of the difference[s] would be that she worked Reasonable Accommodation and EEO projects, while he dealt with the Union.” Complainant argues that such differences are not sufficiently substantial to make their jobs unequal, but she has not produced evidence showing that the differences were minor or constituted a small portion of her and Coworker 1’s job duties. In fact, their respective closeout narratives show that Coworker 1’s involvement in union negotiations was of prime importance to his supervisors, whereas Complainant’s involvement in EEO matters comprised much of her closeout narrative, which included no mention of her participation in union 2021002444 7 negotiations. We agree with the AJ’s conclusion that Coworker 1’s duties involving communicating and negotiating with union officials require different skills, effort, and responsibility than Complainant’s EEO and reasonable accommodation projects. Complainant has therefore failed to meet her burden under the EPA. Even assuming arguendo that Complainant established a prima facie case of discrimination under the EPA, we find the Agency has shown that the pay differential was based on a factor other than sex. S1A hired Complainant in the excepted service using a GS-13 attorney PD allocated to S1A’s office as the only way to bring Complainant onboard non-competitively. Complainant’s position was therefore not advertised. S1A averred that this process was the only way to effectuate Complainant’s hiring at that time, in a way the Agency describes on appeal as “jamming the hiring through.” Conversely, Coworker 1 applied to his position from a vacancy announcement for a GS-14 Program Analyst position that was posted about three months prior to Complainant joining the Agency, and Coworker 1 was selected among several candidates. Upon review, we find the record establishes the hiring process the Agency used, which determined Complainant’s GS-13 level, is a gender-neutral factor, applied consistently, and that Complainant failed to show that the Agency violated the EPA. Next, we address Complainant’s claim that she was subjected to disparate treatment based on her sex with regard to Claims 2, 3, and 4. To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Here, assuming arguendo Complainant established a prima facie case of sex discrimination, we find that the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its actions, namely that Complainant was hired noncompetitively using an open PD allocated to OMHA. For the reasons discussed above, we find that Complainant failed to show that the salary difference at issue was motivated by discriminatory animus. Regarding Claims 2, 3, and 4, which involve Complainant’s inaccurate PD, we agree with the AJ’s conclusion that Complainant failed to produce evidence showing that the Agency’s actions were motived by discrimination or retaliation. The record indicates that the atypical circumstances surrounding Complainant’s hiring were the cause of her PD not matching her actual job duties, and Complainant failed to show that this reason was pretext for discrimination or reprisal. 2021002444 8 Regarding Claim 11, we find that the alleged incidents, even if true, do not rise to the level of retaliation. Evidence in the record indicates that scrutiny and criticism would vary depending on the issue or case at hand, and the alleged increase in such criticism did not affect Complainant’s outstanding performance evaluation in 20173, or have any tangible negative effect on Complainant. Similarly, even if her name was lower on the organizational chart, such an action is not reasonably likely to deter protected EEO activity. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the AJ’s decision, which became the Agency’s final order, finding no discrimination. 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 3 Complainant’s evaluation for the appraisal period ending on December 31, 2017, shows she received the highest possible point value (5.0) for each of her performance elements. 2021002444 9 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). 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. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408) You are authorized under section 16(b) of the Fair Labor Standards Act (29 U.S.C. § 216(b)) to file a civil action in a court of competent jurisdiction within two years or, if the violation is willful, three years of the date of the alleged violation of the Equal Pay Act regardless of 2021002444 10 whether you have pursued any administrative complaint processing. The filing of the 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 August 08, 2022 Date