01995807
02-28-2002
Shirley A. Zendzion, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Shirley A. Zendzion v. Department of the Navy
01995807
February 28, 2002
.
Shirley A. Zendzion,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01995807
Agency No. 98-98570-003
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against on the basis of sex (female) when:
(1) she was told that her GS-334-09 position would not be upgraded and
would be eliminated in the Human Resources Office (HRO) regionalization;
however, a male Computer Specialist (CW1) was laterally reassigned at
the GS-11 level to HRO;
on November 7, 1997, she was told by CW1 that HRO was paying for him to
attend an Automated Data Processing (ADP) Security course, and she had
not been registered for the course by her supervisor (S1) even though
she was the HRO Automated Data Processing Security Officer; and
for almost three years, she was not provided any training opportunities
for technical computer courses that she needed to perform her job,
but S1 and other part-time HRO employees were sent to training.
For the following reasons, the Commission AFFIRMS the agency's final
decision finding no discrimination.
The record reveals that during the relevant time, complainant was employed
as a Computer Specialist, GS-09 with the HRO at the agency's Naval
Submarine Base New London (Activity) facility in Groton, Connecticut.
Complainant was promoted to GS-09, the full performance level of her
position, in April 1994. From April 1995 to November 1997, complainant
attended four computer courses.
Because of an impending regionalization of personnel services, a
Transition Team decided to freeze all HRO permanent promotions effective
March 19, 1997. In addition, a the proposed organizational charts for the
regionalized services did not include any Computer Specialist positions.
Complainant then applied, and was selected for a Computer Specialist,
GS-09 position in the Activity's Information Technology Department with
promotion potential to the GS-11 grade level. The record reveals that on
November 23, 1997, complainant accepted the position. Also on November
23, 1997, CW1 was laterally reassigned to HRO from the Northeast Region.
CW1 attended ADP training in December 1997.
Believing she was a victim of discrimination, complainant sought
EEO counseling and subsequently filed a formal complaint on January
27, 1998. At the conclusion of the investigation, complainant was
informed of her right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision. It is from
this decision that complainant appeals.
In its FAD dated June 9, 1999, the agency concluded that it had
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the agency found that while with the HRO, complainant
had problems setting priorities and could not be relied upon to finish
a job, to the point that another employee followed up with customers
to ensure that complainant had completed assignments. Accordingly, the
agency denied that complainant was working at the GS-11 level in the HRO.
The agency also noted that the position CW1 was assigned was originally
set up on a temporary basis, but became permanent after HRO officials
learned at a regionalization conference that a Computer Specialist would
be needed to provide customer support. The FAD also concluded that
complainant failed to show that the agency's reasons were a pretext to
mask a discriminatory animus.
On appeal, complainant contends that the FAD was inaccurate and failed
to address the information contained in the Investigator's Report.
Complainant also contends that the agency's final decision ignored
discrepancies in the statements given by management officials. The agency
requests that we affirm its FAD.
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether she has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
After a careful review of the record, the Commission finds that the agency
correctly found that complainant was not discriminated against on the
basis of her sex. Specifically, complainant's first line supervisor (S1)
requested that a Computer Specialist position be created on a temporary
(six month) basis when she learned that complainant had applied for
another position and might be selected. In addition, S1 requested a
Computer Specialist at the GS-11 level because the individual that was
being recruited was already a GS-11 and could be enticed to accept
a temporary position at the GS-11 level to avoid a possible forced
reassignment to another state. The record also reflects that complainant
had problems setting priorities, was not consistent in meeting customer's
needs, and did not work independently at the level which would be expected
of a GS-11. The record further establishes that complainant's request
for cc:mail training was not approved because the agency was migrating
to Microsoft Office and Windows NT. Moreover, in regard to CW1 taking
the ADP Security course, the record evidence shows that he was scheduled
for that training class by his former Command prior to working in HRO.
Because the agency has articulated legitimate, nondiscriminatory reasons
for its actions, the burden now shifts to complainant to show that
the reasons are a pretext for discriminatory animus. The Commission
finds that complainant failed to present sufficient evidence that more
likely than not, the agency's articulated reasons for its actions were a
pretext for sex discrimination. In reaching this conclusion, we note that
complainant contends that the individual hired as a Computer Specialist
was related to an employee on the director's staff. Even if true,
that is not the type of conduct prohibited by Title VII. Accordingly,
we find that complainant has failed to meet her burden of demonstrating
that she was discriminated against on the basis of sex.
The Commission notes that although complainant did not cite the Equal Pay
Act of 1963 (EPA), as amended, 29 U.S.C. � 206(d) et seq., the underlying
facts state a claim under the EPA. The EPA was enacted to remedy the
problem of sex-based wage discrimination. In essence, it requires that
employees doing equal work should be paid equal wages, regardless of sex.
See Telford v. Department of the Army, EEOC No. 01973892 (November 2,
1999).
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
violation of the EPA, 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. Arnold v. Department of Treasury, EEOC
Appeal No. 01960490 (July 28, 1998). Once complainant has met this
burden, an employer 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 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 other fact other than sex. 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.� Laffey
v. Northwest Airlines, 567 F.2d 429, 449 (D.C. Cir. 1976). The terms
skill, effort, and responsibility, �constitute separate tests, each of
which must be met in order for the equal pay standard to apply.� 29
C.F.R. � 1620.14(a). The factors of skill, effort, and responsibility
used to measure the equality of jobs are not precisely definable. Id.
Skill includes such things as �experience, training, education, and
ability.� 29 C.F.R. � 1620.15(a). Effort addresses the amount
of �physical or mental exertion needed for the performance of a
job.� 29 C.F.R. � 1620.16(a). Responsibility concerns �the degree of
accountability required in the performance of the job, with emphasis on
the importance of the job obligation.� 29 C.F.R. � 1620.17(a).
An analysis of comparative skills and responsibilities is most problematic
when it involves executive or professional employees. Telford, EEOC
Appeal No. 01973892. The Commission has looked to whether the jobs
share �a common core of tasks, i.e., whether a significant portion of
the two jobs is identical.� Id. In an EPA case, the focus is not on
job descriptions or titles, but on job requirements and performance.
Simkins Finucan v. Postal Rate Commission, EEOC Appeal No. 01914057 (May
20, 1993). In that case, we found that a female attorney's job was not
comparable to those of higher paid male attorneys because we found that
while some of the job tasks were the same, there was a difference in the
level of the difficulty of assignments and the supervision required. Id.
Based on the foregoing, we find that complainant failed to show that she
was discriminated against on the basis of sex under the EPA. Complainant
contends that CW1 was hired at the GS-11 level on November 23, 1997,
while complainant had been compensated at the GS-09 level for several
years in her position as Computer Specialist. However, we find that the
record supports the agency's assertion that complainant was not performing
at the same level of skill, effort and responsibility as CW1 and that
complainant was properly classified at the GS-09 level. As noted above,
agency officials averred that complainant did not complete assignments,
could not work independently, and that she met with the manager in HRO
weekly in order to set priorities.
While complainant argues that she received evaluations of �Fully
Successful� or �Exceeds Fully Successful,� and contends that she could
have worked independently had her supervisors permitted her to do so,
we find that complainant has not sustained her claim of discrimination
under the EPA. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm the FAD.
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
February 28, 2002
__________________
Date