0120052305
02-05-2007
Shirley Johnson, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Shirley Johnson,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120052305
Hearing No. 220-A2-5219X
Agency No. 200J-0541-2002-101
DECISION
INTRODUCTION
On January 27, 2005, complainant filed an appeal from the agency's
December 23, 2004, 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 of 1963, as amended, 29 U.S.C. �
206(d) et seq. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
affirms the agency's final order.
ISSUES PRESENTED
The issues presented herein are whether the agency discriminated against
complainant on the bases of race (African-American), sex (female),
and reprisal for prior protected EEO activity when:
1. she received lesser wages than male coworkers from September 2000
forward based on her sex;
2. she was subjected to disparate treatment when she was assigned duties
previously performed by white male Vocational Rehabilitation Counselors
based on her sex, race and in reprisal; and
3. in an act of reprisal, the agency issued her a reprimand on April 18,
2003 for failing to follow supervisory instructions and failing to meet
documentation requirements.
BACKGROUND
During the relevant time, complainant worked as a Vocational
Rehabilitation Specialist, GS-9, in the Mental Health Care Line, Veterans'
Industries Division, at the agency's Louis Stokes Department of Veteran
Affairs Medical Center in Brecksville, Ohio.1 Complainant maintained
that, in September 2001, she performed work that was substantially equal
in skill, effort, and responsibility to five white, male Vocational
Rehabilitation Counselors, GS-11, (JC, JJ, TL, DM, and RS), but the
agency paid her lesser wages. The record reveals that the identified
comparators possessed Master's degrees in vocational counseling or
social work;2 complainant possessed a Bachelor's degree in Business
Administration with a major in Marketing.
The record further reveals that complainant and another white, male
employee (BL), who both held the Vocational Rehabilitation Specialist
position, received additional duties in September 2001. Specifically,
the agency required them to perform case management duties for the
Compensated Work Therapy Program, duties that had been performed by the
Vocational Rehabilitation Counselors in the Psychological Rehabilitation
Division. Based upon these additional duties, complainant requested
an amendment to her position description and a reclassification of her
position by the agency. The agency permitted complainant to provide
input regarding her amended position description. However, after the
new position description was submitted for classification, the agency
determined that the Vocational Rehabilitation Specialist position was
appropriately classified at the GS-9 level.
On December 17, 2002, the Program Manager issued complainant a memorandum
regarding documentation and clinical duty requirement. He identified a
list of client files that did not contain completed treatment plans or
progress notes, and instructed complainant to complete the documentation
by January 10, 2003. On February 14, 2003, the agency issued complainant
a Proposed Reprimand for failing to follow supervisory instructions and
failing to meet documentation requirements. Thereafter, complainant
and the Manager, Mental Health Care Line, met to discuss the proposed
discipline, and complainant asserted that the discipline was too
severe and expressed her willingness to address the identified problem.
By decision dated April 8, 2003, the proposed discipline was sustained,
and complainant was notified of the reprimand on April 18, 2003.
On March 8, 2002, complainant filed an EEO complaint alleging that she
was discriminated against as stated above. 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 timely requested a hearing.
The AJ held a hearing on December 16 and 17, 2003, and issued a decision
on December 3, 2004, finding no discrimination.
The AJ determined that complainant failed to establish a violation of
the EPA because, while complainant and all her comparators performed
case management duties, these duties were not the sole function of any
of the positions. Specifically, the AJ found that JC, JJ, TL, DM, and RS
performed duties that differed from those performed by complainant and BL;
complainant did not perform patient assessments as part of her duties,
while the comparators did; she was not qualified to hold a Vocational
Rehabilitation Counselor position because it required a Master's degree
in Rehabilitation Counseling or Social Work;3 and she failed to show that
her job required substantially equal skill. The AJ also determined that,
even if complainant could show that her job required equal skill, effort
and responsibility, under similar working conditions within the same
establishment, the agency established an affirmative defense in that it
used a bona fide classification system to determine complainant's pay.
With respect to claims (2) and (3), the AJ found that complainant
failed to establish a prima facie case of race or sex discrimination
because she failed to identify anyone not in her protected classes who
was similarly situated to her and treated more favorably, and that she
failed to establish a prima facie case of reprisal because she could not
establish a nexus between the agency's actions and her prior EEO activity.
The AJ then assumed arguendo that complainant established a prima facie
case of discrimination and found that the agency articulated a legitimate
nondiscriminatory reason for redistributing the case management duties,
namely that the agency did so in an effort to better serve its clientele.
The AJ concluded that complainant failed to establish by a preponderance
of the evidence that the agency's actions were motivated by discriminatory
animus based upon her race, sex, or prior EEO activity.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged. Complainant filed the present appeal.
On appeal, complainant asserts, among other things, that the AJ
adjudicated the case based upon her perception of the facts, and not
complainant's complaint; she explains that she prevailed in a previous
complaint under similar circumstances, but the agency continued its
alleged discriminatory practices; when she accepted her position,
management made clear to her that she would not be required to perform
case management duties; and the AJ refused to allow her to amend her
complaint at the pre-hearing conference.
ANALYSIS AND FINDINGS
Standard of Review
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.
Equal Pay Act
Complainant alleged a violation under the Equal Pay Act. 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 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. 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). Once a complainant has met their
burden of establishing a prima facie case, an employer may avoid
liability only if it can prove that the pay difference is justified
under one 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
an incentive or piecework system); or (4) a differential based on any
other factor other than sex. 29 U.S.C.�206(d)(1); Corning Glass Works,
417 U.S. at 196-97: Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th
Cir. 1982). Job classification systems qualify as a "factor other than
sex" only if the systems accurately reflect job duties and/or employee
qualifications.
At the outset, the Commission finds that the AJ's determination of
no discrimination to be appropriate in this case, as complainant has
failed to establish, by a preponderance of the evidence, that she was
the victim of unlawful workplace discrimination. We further find that
the AJ properly adjudicated the case before her based upon the claims
raised, her findings of fact are supported by substantial evidence, and
she correctly applied the appropriate regulations, policies, and laws.
With respect to her EPA claim, complainant failed to show that the
actual content of the job which she performed involved similar tasks,
required similar skill effort and responsibility, and was similarly
complex or difficult, as compared to that of the Vocational Rehabilitation
Counselors. Further, although complainant undertook some case management
duties, the record reveals that JC, JJ, TL, DM, and RS performed other
more complex duties than complainant, including, for example, serving
as the operations manager of the workshop, soliciting new contracts for
Veterans' Industries, and performing work evaluations. Finally, the AJ
correctly found that, even assuming that complainant could establish a
prima facie case under the EPA, the agency established an affirmative
defense in that it used a bona fide classification system to determine
complainant's pay. Accordingly, the Commission finds substantial
evidence to support the AJ's determination that complainant failed to
prove discrimination under the EPA.
Disparate Treatment under Title VII
To prevail in a disparate treatment claim such as this, 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
she 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 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept' 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); St. Mary's Honor Center v. Hicks,
509 U.S. 502, 519 (1993).
Here, the Commission finds that the record does not support a finding
of intentional discrimination under Title VII. Specifically, we find
that the AJ properly determined that complainant failed to establish a
prima facie case of race, sex, and reprisal discrimination under the
standards set forth in Furnco. Furthermore, even assuming that she
established a prima facie case of discrimination, the agency has met its
burden to articulate legitimate nondiscriminatory reasons for its action.
Specifically, with respect to claim (2), complainant was assigned duties
previously performed by white male Vocational Rehabilitation Counselors
because the agency redistributed case management in an effort to better
serve its clientele; and (3) the agency issued complainant a Proposed
Reprimand for failing to follow supervisory instructions and failing
to meet documentation requirements. We note that complainant does not
deny that her client files did not contain completed treatment plans
or progress notes. We further find that complainant has failed to show
that these reasons are pretext for discrimination.
In sum, the Commission finds substantial evidence in the record to
support the AJ's final assessment in this matter. Therefore, after
a careful review of the record, including arguments and evidence not
specifically addressed in this decision, we affirm the agency's final
order, finding no discrimination.
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
_____2-5-07_____________
Date
1 The Mental Health Care Line consists of two divisions: the Veterans'
Industries Division and the Psychological Rehabilitation Division.
2 On July 12, 1996, the agency required that counselors in the 101
job series, including Vocational Rehabilitation Counselors, possess a
Master's degree.
3 The AJ explained that the GS-11 Vocational Rehabilitation Specialist
position no longer existed because the agency began requiring employees
performing counseling functions to have a Master's degree.
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0120052305
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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