Shirley Johnson, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 5, 2007
0120052305 (E.E.O.C. Feb. 5, 2007)

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

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Office of Federal Operations

P. O. Box 19848

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