Jessenia S.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (National Cemetery Administration), Agency.

Equal Employment Opportunity CommissionApr 12, 2017

0120150758 (E.E.O.C. Apr. 12, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jessenia S.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (National Cemetery Administration), Agency. Appeal No. 0120150758 Hearing No. 570-2012-00744X Agency No. 2004-0040-2011103534 DECISION The Commission accepts Complainant’s appeal from the Agency’s November 13, 2014, 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 final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-13, in the Agency’s Office of Finance and Planning, Business Process Improvement Service in Washington, D.C. In April 2011, Complainant approached her supervisor (S1) and complained that she was not being paid at the same level as her co-worker (CW1) for performing the same work. CW1 was a Program Analyst, GS-14. Complainant believed that she was performing the same work as CW1, including conducting Organizational Assessment Improvement (OAI) site visits to cemeteries and briefing cemetery staff. Complainant believed that her position description was outdated and that the position had evolved to include the same 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the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. 0120150758 2 duties as CW1. S1 informed Complainant that he could not promote her to the GS-14 grade unless there was a vacancy for which she applied and was selected. In May 2011, S1 provided Complainant a written analysis of her position and CW1’s position and discussed the duties of GS-13 and GS-14 Program Analyst positions. S1 believed that Complainant was not performing all of the duties of the GS-14 position. Complainant believed that she was performing at least 75 percent of the GS-14 position. Complainant claimed that S1’s analysis was inaccurate and requested a desk audit. On June 2, 2011, S1 contacted the Human Resources Office about a desk audit of Complainant’s position. In July 2011, the Human Resources Director (HR1) met with Complainant regarding her request for a desk audit. HR1 informed Complainant that she could request either an official or unofficial desk audit. HR1 warned Complainant that that an official desk audit could result in her position being upgraded, downgraded, or remaining the same while an unofficial desk audit could not result in a downgrade. Complainant requested an unofficial desk audit. HR1 requested that Complainant provide details about her work and how she believed her current work was at the GS-14 level. Complainant failed to provide the requested information and no desk audit was completed. In June 2011, Complainant led a site visit to the Camp Butler Cemetery. The cemetery was not in a presentable state and had significant problems including weeds as high as the headstones, flowers strewn about, sunken graves, and overflowing dumpsters. S1 did not usually attend site reviews; however, he was upset that Complainant had not alerted him of the severity of the conditions at the cemetery. Around the same time, an Administrative Inquiry Board (AIB) was conducted at the cemetery. The Chair of the Board noted that the cemetery was “the worst cemetery we had seen from all the national cemeteries that we had gone to in my brief four years with the [Agency.]” Complainant drafted a report following the Camp Butler site review and submitted it to S1 for review. S1 “held on to” the report and another site review report before submitting them to his supervisor. S1 informed Complainant that her meeting with the Deputy Under-Secretary was cancelled and instructed her not to discuss or meet with the Deputy Under-Secretary regarding the report until he had reviewed and signed off on the report. In June 2011, CW1 announced that he was leaving his position. Complainant emailed S1 stating that she had talked with CW1 and would be taking over the Calverton OAI site visit. S1 responded, thanking her for her willingness to help with the site visit; however, he informed her that he issued work assignments, not CW1. S1 assigned the site visit to another co-worker, noting that it would meet his goal of cross-training the staff. In December 2011, S1 issued Complainant’s performance evaluation. S1 rated Complainant overall as “Excellent.” S1 rated Complainant one level higher (“Outstanding”) the previous year. 0120150758 3 Following the departure of two GS-14 Program Analysts, the Agency issued vacancy announcements for the vacant positions. Complainant submitted her application for one of the positions. A three-person interview panel which included S1, who was the selecting official, interviewed 12 candidates, including Complainant. All three panelists rated one candidate (Selectee 1) a perfect score of 420 combined, and he was selected for the position. Selectee 1 later declined to accept the position after the certificate had already expired. The Agency then selected a candidate (Selectee 2) who had a combined score of 340. Complainant’s combined score was 300. Seven candidates, including Selectees 1 and 2, had higher scores. On September 13, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), sex (female), and in reprisal for prior protected EEO activity as evidenced by multiple incidents including: she asked her supervisor (S1) to upgrade her position to a GS- 14, to match the grade and duties of her white, male co-workers; S1 told her that he did not have legal authority to promote her to GS-14 because her position had no promotion potential beyond her GS-13 grade; S1 sent her an email stating that he would submit the proper paperwork for a desk audit for her position to be upgraded, but no one contacted her regarding the matter; S1 held on to the “Butler report;” S1 excluded her from project discussions; she received a performance appraisal with a rating lower than the previous year; and she was not selected for a GS-14 Program Analyst position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on July 9 and 10, 2014, and August 8, 2014, and issued a decision on August 28, 2014. In the decision, the AJ determined that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. The AJ first addressed Complainant’s equal pay claim under the EPA and Title VII. The AJ noted that Complainant argued that she and CW1 performed very similar duties, but CW1 was paid at a higher rate. Complainant admitted that CW1 performed some duties she did not, and that their duties were the same only about 70 to 85 percent of the time. Further, Complainant admitted that a Team Lead GS-14 would have more responsibility and accountability, and less supervision than a non-Lead GS-13. The Agency argued that Complainant, a GS-13 Program Analyst, did not perform substantially similar duties as CW1, a GS-14 Program Analyst and Team Leader. S1 testified that CW1 performed additional duties that Complainant did not and management held CW1 to higher level of responsibility and accountability than Complainant. CW1 testified that he served as Team Lead for the program and performed duties that Complainant did not including: background analysis for the Director; coordination of logistics for the Lessons Learned Conference; updating the Organizational Assessment Improvement Guide; and updating standards and measures. 0120150758 4 The AJ concluded that Complainant and CW1 performed similar duties, but their duties were not substantially similar under the EPA or Title VII. The record showed that CW1 performed some important duties that Complainant did not including background analysis, budget duties, and updating the Guide. Moreover, the undisputed evidence showed that CW1 held greater responsibility as a Team Lead. Accordingly, the AJ found that Complainant had not established that she was paid less based on her sex or race. Regarding her performance evaluation, the Agency stated that Complainant did not receive an “Outstanding” rating because her report from the Camp Butler Review had to be re-written. Additionally, S1 testified that Complainant should have notified him of the “deplorable” conditions at the cemetery. The AJ found that the evidence showed that the Camp Butler cemetery had significant problems and that Complainant did not notify S1 about the conditions upon his arrival. The AJ noted that S1 also gave a lower rating to a white, male co-worker with no EEO activity at that time. With respect to her non-selection claim, the Agency explained that Selectee 2 was selected because she performed better during her interview than Complainant. Specifically, the panelists testified that Complainant’s interview answers were at times incomplete, somewhat inadequate, and did not address the question asked. For example, one interview question asked the candidates to describe a time when they had to convince someone in authority of something that had an organizational impact. Complainant gave an example of a scheduling issue which the panel found was a weaker response than Selectee 2’s example. Another question focused on understanding customer needs. Complainant responded, but did not answer the question. By contrast, the selectees provided thoughtful and complete answers that described their experience and applicability to the question. The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were pretextual. With respect to her non-selection, Complainant failed to demonstrate that she was the plainly superior candidate. As a result, the AJ found that Complainant had not been subjected to discrimination or reprisal as alleged. With regard to her overall hostile work environment claim, the AJ determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Additionally, the AJ found that there was no evidence that the conduct at issue was based on discriminatory or retaliatory animus. Complainant argued that after she contacted the EEO Office, S1 began retaliating against her by excluding her from duties she had performed previously, including training, planning site reviews, and selecting review team members. S1 explained that Complainant was not excluded from the Lessons Learned training/planning in 2011, because no Lessons Learned training was held that year. The previous year the Lessons Learned training was held was 2009, before S1 became the director. S1 additionally testified that in 2010, CW1 took the lead in selecting team members and cemeteries for review, but S1 took over that function after CW1 left in 2011. S1 further testified that he did not assign Complainant the Calverton review after CW1 transferred away 0120150758 5 because he believed that Complainant did not have sufficient to time to do it and he instead did it with another co-worker to pick up the slack for the smaller team. S1 testified that he “held on to” the Butler report because it was a “one of a kind” site visit as the cemetery was in such “disarray.” Therefore, he “stepped in and took over.” The AJ concluded that the alleged incidents at issue were isolated trivial slights and petty annoyances that did not rise to the level of severe or pervasive conduct. As a result, the AJ found that Complainant had not been subjected to a hostile work environment as alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that starting in 2010, she was performing the same essential duties as the GS-14 Program Analyst. Complainant argues that her supervisor did not take well to being challenged and his conduct towards her immediately changed after she raised discrimination allegations. Complainant claims that S1 began treating almost everyone poorly after she raised sex and race discrimination. Complainant alleges that S1 gave inconsistent and contradictory testimony regarding the reasons for her non-selection. Complainant contends that numerous witnesses testified about her knowledge and ability to do the job, and that the entire program was unraveling because S1 would not accept her assistance. Complainant alleges that S1 excluded her from program matters for which he could not credibly explain. Finally, Complainant claims that S1 provided a specious explanation for not rating her as “Outstanding.” Accordingly, Complainant requests that the Commission reverse the final order. 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. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether 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. See 29 C.F.R. § 1614.405(a). An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at § VI.B. (Aug. 5, 2015). 0120150758 6 ANALYSIS AND FINDINGS EPA Claim 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. Equal Emp’t. Opp. Comm’n., EEOC Appeal No. 01A02919 (Sept. 12, 2000), req. for reconsid. denied, EEOC Request No. 05A10076 (Aug. 12, 2003). 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). 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. Upon review, the Commission finds that substantial evidence supports the AJ's finding that Complainant and CW1 did not perform equal work requiring equal skill, effort, and responsibility. While Complainant and CW1 performed similar duties, S1 testified that CW1 was the senior GS-14 Lead and Complainant was the junior GS-13. Hr’g Tr., Vol. 3, at 468. S1 further explained that both performed site reviews and sometimes worked jointly together while providing information to each other; however, CW1 was responsible for the overall program with minimal supervisory assistance and direction. Id. at 469. Further, CW1 structured report-writing; scheduled new cemeteries for visits; identified which cemeteries would be visited; performed budgetary duties; oversaw training new team members; and ensured that the program’s standards and measures were refreshed. Id. at 469-71; ROI, at 192. Additionally, CW1 testified that CW1 was held to a higher level of responsibility and accountability as a GS-14 Lead than was Complainant. Id. at 471-72. Thus, substantial record evidence supports that Complainant did not perform the higher-level duties or assume the greater responsibility for program management that CW1 performed. Accordingly, the Commission finds that Complainant failed to prove that the Agency violated the EPA. 0120150758 7 Disparate Treatment 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 Constr. Corp. 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. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Upon review, the Commission finds substantial evidence supports the AJ's decision. Assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, substantial record evidence shows that Agency officials articulated legitimate, nondiscriminatory reasons for their actions. Specifically, as to her claim that she was paid less for equal work, as discussed above, Complainant did not perform equal work requiring equal skill, effort, and responsibility. Substantial record evidence shows that Complainant may have performed similar duties as CW1; however, she did not perform the higher-level duties or assume the greater responsibility for program management that CW1 performed. Further, with respect to her claim that management would not promote her to the GS-14 level, S1 testified that he did not have the authority to promote her without the Agency having a vacant GS-14 position and her being a successful applicant for that position. Hr’g Tr., Vol. 3, at 478. Regarding her performance appraisal, S1 stated that he rated Complainant as “Excellent” because he did not believe that Complainant handled the Camp Butler matter appropriately and that she should have contacted him about the condition of cemetery. Id. at 519-20. Finally, as to her non-selection for the GS-14 Program Analyst position, S1 testified that he and two other panelists interviewed candidates for the position, asking the same standard questions, and independently scored each candidate based on their responses. Hr’g Tr., Vol. 3, at 523-24. Following interviews, the panel selected two individuals. The panel independently rated Selectee 1, an external candidate, with perfect scores. Id. at 525; ROI, Ex. C5. S1 affirmed that Selectee 1 gave clear, concise responses to the interview questions. Id. at 210. A panelist confirmed that Selectee 1’s interview responses conveyed a breadth of knowledge and abilities that directly related to each of the questions. ROI, at 221. The panelist added that Selectee 1’s interview was exceptional in that he was able to provide a clear, understandable description of the situation directly relating to the question asked and detailed examples of his actions and accomplishments relevant to the question. Id. Selectee 1 ultimately declined the position, but S1 could not make another selection to replace him from the certificate because the certificate had expired. ROI, at 209. Likewise, Selectee 2 provided complete and thoughtful answers that described her experience and conveyed technical, 0120150758 8 analytical, and organizational capability. Id. at 222. By contrast, a panelist affirmed that Complainant did not demonstrate the same level of thoroughness or understanding and she provided weaker responses than the selectees. Id. at 210, 222. As a result, Selectee 1 and Selectee 2 were selected. The Commission finds that there is substantial evidence in the record to support that Complainant did not establish that the Agency's explanation for its actions was a pretext for discrimination or reprisal. The record and facts gleaned at the hearing fail to disclose any evidence purporting to show the Agency's actions were pretext for discriminatory or retaliatory animus. Thus, after reviewing the record and considering arguments on appeal, the Commission finds that the AJ made reasonable credibility determinations, which are not contradicted by objective evidence, and her factual findings are supported by substantial evidence. Therefore, the Commission finds that Complainant has not established that she was subjected to discrimination or reprisal as alleged. Hostile Work Environment To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, Complainant asserted that based on her protected classes, management subjected her to a hostile work environment. Complainant alleged several incidents of what she believed to be discriminatory and retaliatory harassment. The Commission finds that substantial record evidence supports the AJ’s determination that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace 0120150758 9 disputes and tribulations. Accordingly, the Commission finds that Complainant was not subjected to a discriminatory or retaliatory hostile work environment as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the final Agency order because the Administrative Judge’s ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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). 0120150758 10 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 (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 April 12, 2017 Date