0120083955
12-16-2010
Susan M. Yeager, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Susan M. Yeager,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083955
Agency No. 200L-0586-2007104287
DECISION
On September 17, 2008, Complainant timely filed an appeal from the
Agency's August 14, 2008, final decision concerning her 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 (EPA), as amended, 29 U.S.C. � 206(d) et seq.
For the following reasons, the Agency's decision is AFFIRMED.
BACKGROUND
The record indicates that Complainant, a Podiatrist, GS-13, G.V. Sonny
Montgomery, VAMC, Surgical Center, in Jackson, Mississippi, contacted an
EEO Counselor on September 28, 2007, concerning her complaint. Unable to
resolve the matter informally, Complainant filed her complaint dated
November 13, 2007, alleging that:
(1) She was discriminated against based on sex (female) when on April 30,
2007, she was given an office that she was required to share, whereas
a male Podiatrist (P) hired in October 2007, was not required to share
an office;
(2) She was discriminated against based on sex (female) when since April
30, 2007, she has not been permitted administrative time or operating
room time, whereas P was permitted both;
(3) She was discriminated against based on sex (female) when on September
13, 2007, she received a satisfactory performance rating;
(4) She was discriminated against based on sex (female) in that she was
denied equal pay when P was hired as a GS-15 and she was retained as a
GS-13; and,
(5) She was discriminated against based on sex (female) and in reprisal
for prior EEO activity when on October 17, 2007, her supervisor, Chief
of Surgical Service, screamed and yelled that he did not want her in
his Service.
Complainant claimed that when she was reassigned to the facility on April
30, 2006, she was assigned to an office in which she continued to share
with another provider. Report of Investigation (ROI), Exhibit (Ex.) B1.
Although the provider was not physically in the office, his personal
belongings were still in the office and his name was still on the door.
However, when P was hired in September 2007, he was provided with a
private office with new furniture. When she complained about this to
her supervisor, the supervisor told her that he thought the provider
had already moved into another office.
Complainant's supervisor initially indicated that office space had been at
a shortage for years in his facility and securing additional office space
from the administration remained an ongoing challenge for new employees
who frequently had to share offices. ROI, Ex. B2. The supervisor stated
that in anticipation for Complainant's arrival, he made a request in
January, 2006, to the space and equipment committee to procure clinic
space and office space and furniture for her. When Complainant arrived to
the facility on April 30, 2006, her office (Room E-101), with new office
furniture, was ready for her, but she found this office unsatisfactory.
Then, Complainant was offered a temporary office B-231, which was
assigned to one of the Ophthalmologists, while another office A-3 was
being prepared for her. The foregoing Ophthalmologist was eventually
assigned to an office suite to share with two other Ophthalmologists,
which left Complainant with a private office. Complainant subsequently
preferred office B-231, and she remained in that office at the present
time. The supervisor indicated that he had no knowledge that the
Ophthalmologist left some personal items in the office until Complainant
brought the matter to his attention, described above. The supervisor
indicated that the Ophthalmologist was never physically working in
office B-231 with Complainant. Immediately, upon learning of the
remaining personal items, they were removed which Complainant confirmed.
The supervisor stated that Complainant did not bring the matter about
the name on the door which stated "Ophthalmologist Staff," and not the
person's name, until he was informed of such via the instant complaint.
The supervisor then requested a work order to get the sign changed.
With regard to P's office space, the supervisor stated that he requested
an office for him through the space and equipment committee as he did
for Complainant. When P arrived at the facility in September 2007, the
administration assigned P to office A-406 without furniture. P accepted
the assigned office and his furniture did not come until November, 2007.
Complainant claimed that she was the only provider not permitted
administrative time or operating room time. She indicated that when
she was previously employed at another agency facility, Podiatrists
were given administrative time to catch up on their notes as well as
operating room time.
The supervisor stated that when he recruited both Complainant and P,
he specifically advised them and later reaffirmed that the Podiatrist
position did not include operating room privileges. He explained that
the Podiatry facility was to improve access to care in the Podiatry
clinic and that foot surgery at the facility was always provided by
orthopedics, general surgery and vascular surgery. The supervisor
stated that no one in the Podiatry Section, including Complainant, P,
and two contract Podiatrists (part-time), had operating room privileges
or administrative time.
Complainant also claimed that on September 13, 2007, she received her
first evaluation of a satisfactory performance rating. She stated that
she should have received a higher rating. The supervisor indicated that
he rated Complainant a high satisfactory rating, and not a satisfactory
rating as she alleged. He stated that Complainant signed the rating
without complaining or objecting. The supervisor indicated that he did
not give a performance rating to P because he had been on staff less
than a year.
Complainant claimed that on October 25, 2007, she discovered that P
was hired as a GS-15 whereas she retained her GS-13, step 10 grade
when she transferred from another VA facility to the present facility
in April 2006. Complainant indicated that both she and P were licensed
Podiatrists performing substantially the same patient care duties, except
she was in charge of the Podiatry clinic. Recently, she submitted a
Boarding Package to the Podiatry Professional Standards Review Board
(PSRB) for a pay review and the Board approved her for a GS-14, step 6
grade effective January 2008.
The supervisor initially indicated that on October 18, 2007, Complainant
requested a pay increase. Immediately, he made an inquiry on that matter
and he informed Complainant about the required documentation and forwarded
his letter of recommendation supporting her request for a pay review on
October 29, 2007. The PSRB ultimately granted Complainant's request for a
pay increase to GS-14 effective January 20, 2008. With regard to P, since
P was not a transfer from another VA facility, as Complainant was, and
he was recruited from an outside Agency, the PSRB convened to determine
a salary level for his appointment to the Podiatrist position. The Board
recommended that P be appointed as a GS-15 based on his credentials which
matched the GS-15 criteria. ROI, Ex. C11. The supervisor stated that he
was not involved in determining the pay grade for any medical personnel
on his staff, including Complainant and P; rather the pay grade for
these positions was solely determined by the PSRB, an independent board.
The Agency's PSRB for Podiatry members stated that under the Agency's
guidelines and regulations that applied to each GS-grade level, P was
recommended for a GS-15 because he was Board Certified, a faculty member,
and based on his work experience, credentials, and qualifications. ROI,
Ex. B3. The PSRB also indicated that P had over 20 years of practical
experience as a Podiatrist, clinical instructor, research positions,
regional team leader, president of the New York Podiatric Medical
Association, and had numerous publications in reference journals. ROI,
Ex. B5. Complainant, however, had less than three years of practical
experience, had not contributed any publications for referenced journals,
and was not Board Certified. ROI, Ex. C9.
With regard to the October 17, 2007, incident, Complainant claimed that
her supervisor convened a meeting with her and P. During the meeting,
Complainant claimed, the supervisor went on a rampage by yelling and
screaming at her that he did not want her under his service any more.
Complainant indicated that the supervisor threatened to move her, and
not P, from surgical service to nursing service.
The supervisor stated that the meeting at issue was a follow up meeting
to continue the discussion of clinic issues and to further discuss his
proposal to have all podiatric care, podiatrists (i.e., both Complainant
and P), and foot care nurses under the Chief of Staff or the Associate
Director of patient care services, who happened to be the Chief Nurse
Executive. The supervisor denied yelling or screaming at Complainant
as she alleged. ROI, Ex. B2.
After completion of the investigation of the complaint, Complainant
did not request a hearing. In accordance with her request, the Agency
issued its final decision pursuant to 29 C.F.R. � 1614.110(b) finding
no discrimination. Complainant files the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she and P perform the same basic
duties. With regard to qualifications, Complainant indicates that she was
trained very differently than when P was trained. Complainant states that
P was trained via a pass fail system, but she was trained via an academic
system; she had a surgical residency but P had not; and she practiced
and trained from the hip to the foot, but P only trained on the foot.
Complainant also contends that she initially gave up the first office she
was offered by the Agency due to its poor design and also the second one
since it needed a new carpet. She states that she should have been given
an office which became available before it was given to P. Complainant
contends that she found out from her patient that a former Podiatrist,
who is now a contract Podiatrist, had surgical privileges at the Agency.
In response to Complainant's appeal, the Agency, reiterating its arguments
in its final decision, states that Complainant and P did not perform work
that was substantially equal in skill, effort, and responsibility under
similar working conditions. The Agency also states that with respect
to the reprisal claim, Complainant's supervisor denied that he shouted
at Complainant. Assuming arguendo, however, that the incident happened,
the Agency indicates that the relationship between Complainant and the
supervisor was troubled long before Complainant initiated the instant
complaint; thus, there was no showing of any causal connection between
the incident and Complainant's participation in protected activity.
The Agency also indicates that despite her contentions, Complainant does
not offer any evidence that she is better trained than P; and she also
does not contend that the PSRB, which initially determined the grade
levels of both Complainant and P, should have disregarded P's many years
of experience.
ANALYSIS AND FINDINGS
In the instant case, the Agency's final decision, which was issued without
a hearing, is subject to de novo review by the Commission. 29 C.F.R. �
1614.405(a). See Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining
that the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Disparate Treatment Claims: Claims (1), (2), (3), and (5)
To prevail in a disparate treatment claim such as this, complainants
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainants must initially establish a prima facie case by
demonstrating that they were 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 Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, complainants 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,
120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993).
With regard to claim (1), Complainant's supervisor indicated that he
followed the standard Agency procedure and requested an office space
for Complainant to the Agency space and equipment committee prior to
her arrival. On appeal, Complainant does not contest this. However,
Complainant was not satisfied with the assigned office by the committee.
She then was offered and accepted a temporary office until another office
was being prepared for her satisfaction. Thereafter, she decided to
permanently stay in that temporary office.
The record clearly indicates that the supervisor followed the same
standard procedure and requested an office space for P to the space and
equipment committee. Despite there being no furniture in the office
(the furniture arrived two months later), P accepted the office that was
initially offered to him by the committee. The supervisor indicated
that at the relevant time period, although he advised Complainant to
let him know if she was not satisfied with her office and he would make
a request for another office for her, she made no such request. ROI,
Ex. B2. On appeal, Complainant does not dispute this.
In addition, the supervisor stated that due to an ongoing shortage of
office space, in his surgical administrative suite, three male thoracic
surgeons shared an office and three male vascular surgeons shared
another office. Id. The supervisor further added that outside of his
administrative suite, three male ophthalmologists and eye surgeons shared
an office in the eye clinic, and previously, two male and one female
ophthalmologists shared an office in the basement. Id. We find that
Complainant has not shown that she was discriminated against in claim
(1).
With regard to claim (2), the supervisor clearly indicated that none
of the Podiatrists, including Complainant, P, and two other part-time
contractors, or other surgical clinical staff, was allowed administrative
time or operating room time. On appeal, Complainant does not dispute
this. Also, Complainant provides no evidence to support her contentions
regarding a former employee purportedly having surgical privileges.
We find that Complainant has not shown that she was discriminated against
concerning claim (2).
With regard to claim (3), Complainant's supervisor indicated that he
rated Complainant's performance rating as "high satisfactory," and not
"satisfactory" as she alleged. The record indicates that at the relevant
time period in September 2007, Complainant received a high satisfactory
rating for the rating period from August 8, 2006, to August 8, 2007.
ROI, Ex. C5. Specifically, the supervisor indicated that during the
rating period; Complainant applied her skills and knowledge in podiatric
and wound care to sharpen the office's focus on the early diagnosis
and appropriate management of patients with risk of limb loss; she also
provided leadership in the establishment of a full-time podiatry clinic
space, and worked collaboratively with surgeons and nurses alike; she
helped improve the medical center's education of all staff regarding
wound management; and, she would be working this coming year to improve
access to care for the medical center's podiatry patients and minimize
missed opportunities. The supervisor stated that he gave Complainant
the rating of a high satisfactory because she exceeded reasonable
expectations by a substantial margin, as described above. On appeal,
Complainant does not dispute this. We find that Complainant has not
shown that the rating she was given was incorrect or discriminatory.
With regard to claim (5), the supervisor denied screaming and yelling
at Complainant during the relevant time period. He also indicated that
he did not single out Complainant under his proposed reorganization
which was not actually effectuated since the Chief of Staff decided
to keep the podiatric care structure as it was. The supervisor stated
that under his proposed reorganization, he proposed all podiatric care,
podiatrists, and foot care nurses to be under the Chief of Staff or the
Associate Director of patient care services. We find that Complainant
has not shown that the incident in claim (5), even if it occurred,
was motivated by discrimination.
Claim (4)
Complainant's unequal pay grade discrimination claim can be analyzed
under the EPA and also as a disparate treatment claim under Title VII.
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, complainants must show that they 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), request for
reconsideration denied, EEOC Request No. 05A10076 (August 12, 2003);
see also 29 C.F.R. � 1620.14(a).
Once complainants have 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 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 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). 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 Airlines, Inc., 567 F.2d 429,
449 (D.C. Cir. 1976)).
In the instant case, despite Complainant's contentions on appeal,
the Agency maintains that Complainant and P did not perform work
substantially equal in skill, effort, and responsibility under similar
working conditions. The Agency noted and Complainant acknowledged that
her job duties were to: establish a clinic; diagnose and treat patients
with lower extremity problems; manage patients and the consults and
ensure that they were seen in a timely basis; and, ensure the clinic had
proper instruments and equipment to treat any patients that were needed.
Complainant did not indicate, nor did the record provide, any evidence
that P's duties involved the same duties as she described above.
For argument sake, even if Complainant did establish that her duties
were substantially equal to the duties of P, we find that their salary
level was set by the Podiatry PSRB considering their experience and Board
Certification. The record indicates that the PSRB determined the salary
level for the Agency's nursing, physicians, and podiatry staff based on
an individual's length and level of experience, education, licensure,
publications, and other professional criteria. The record also indicates
that Complainant's grade level and salary were originally set by the PSRB
in June 2004, when she previously worked for the Agency's medical center
in Orlando, and based on her qualifications at the time, she was paid as
a GS 13, Step 10 (intermediate level). When she was reassigned to the
instant Agency's medical center in Jackson, Mississippi, Complainant
retained her grade level to which she agreed. In November 2007, the
PSRB approved Complainant as a GS-14 (senior level) since she obtained
the three year requisite time in grade.
With regard to P, since P was recruited from an outside Agency, in
accordance with the Agency's policy, the PSRB convened to determine
a grade and salary level for P. The PSRB recommended a GS-15 for P
based on his credentials, experience, publishing of numerous articles,
his being a clinical instructor of chemistry and professional lecturer,
and being Board Certified. Complainant, however, was reassigned from
one VA facility to another as a Podiatrist which did not require a
re-determination of pay level by the PSRB, and she retained her GS-13
pay grade in the transfer. It is noted that Complainant agreed to her
GS-13 grade, along with travel and moving expenses, at the time of her
reassignment and does not dispute this on appeal. The record clearly
indicates that Complainant did not request her pay increase until
October 18, 2007. The record clearly indicates that Complainant was
Board Qualified and not Board Certified as P was.
Based on the foregoing, we find that even if Complainant did establish
her job duties were the same as P's job duties, the Agency proved that a
factor other than sex, i.e., utilization of the Podiatry PSRB based on
Complainant and P's experience and Board Certification, constituted an
affirmative defense to justify the salary differential between Complainant
and P. See Pierson v. Department of Transportation (FAA), EEOC Appeal
No. 0120070135 (July 9, 2009) (Commission found no violation of Title VII
and EPA because the difference in pay was attributable to a factor other
than sex, i.e., female complainant was promoted under different pay rules
than male comparator) (citing Williams v. Department of Transportation
(FAA), EEOC Appeal No. 0120062792 (December 5, 2007)); Dorothy Corbin
v. Department of Veterans Affairs, EEOC Appeal No. 01A60194 (June 26,
2006) (Commission found no violation of EPA when an agency used a factor
other than sex, i.e., prior private sector salary, which constituted an
affirmative defense to justify the salary differential between complainant
and male comparator.); Elizabeth Crim v. Department of Veterans Affairs,
EEOC Appeal No. 01A60301 (April 7, 2006); Cynthia C. Williams v. Federal
Emergency Management Agency, EEOC Appeal No. 01A23026 (April 1, 2003),
request for reconsideration denied, EEOC Request No. 0520030721 (May
15, 2003). Therefore, we find that the Agency did not violate the EPA
as Complainant alleged.
Furthermore, because we find that the Agency has asserted legitimate,
non-discriminatory reasons for the difference in pay between P and
Complainant and because we find that Complainant has not shown those
reasons were a pretext for sex discrimination, we find that Complainant
has failed to show that the salary difference at issue in claim (4)
was motivated by discrimination on the basis of sex.
CONCLUSION
The Agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
12/16/10
__________________
Date
2
0120083955
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013