0120132211
04-24-2017
Stefan C.,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Stefan C.,1
Complainant,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120132211
Agency No. HS-TSA-01437-20108
EEOC Hearing No. 570-2011-00589X
DECISION
On May 20, 2013, Complainant filed an appeal from the Agency's April 19, 2013, final order concerning his 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly issued a decision on summary judgment finding that the Agency did not discriminate against Complainant because of his sex (male) and race (White) by paying him less than a Black female co-worker.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Test and Evaluation (T&E) Lead over the Passenger Screening Program (PSP) at the Office of Security Technology (OST) located at the Washington Regan International Airport in Washington, DC.
The undisputed facts of record are as follows:
In September 2004, Complainant was serving as a General Engineer in the OST's Operational Integration Program at the J-Band level. On September 19, 2004, a Black female co-worker (E2) was competitively promoted from General Engineer, J-Band level, to Supervisory General Engineer, K-Band level in the OST's Deployment Program.2 The previous position held by this employee was abolished. In September 2008, Complainant was transferred to the position of General Engineer, J-Band as a T&E Lead over the PSP in the OST. On October 12, 2008, E2 was reassigned from a Supervisory General Engineer position to a General Engineer position over the Electronic Baggage Screening Program (EBSP) in OST. Due to her prior work experience and the growing complexity of the scope of the work she was responsible for in the position, E2 retained her K-Band salary even after the reassignment. In August 2009, the Agency conducted desk audits of the two positions and determined that they were appropriately classified at J-Band and K-Band pay levels.
On October 12, 2010, Complainant filed a formal complaint alleging discrimination as articulated above. On April 18, 2011, he requested a hearing before an Administrative Judge; and, on February 7, 2012, filed a motion for summary judgment. On March 19, 2012, the Agency filed an opposition to Complainant's motion for a decision without a hearing as well as a cross-motion. Two replies followed. On March 23, 2013, the AJ granted summary judgment after finding that Complainant was unable to establish that the Agency subjected him to discrimination as alleged. Specifically the AJ found that: (1) Complainant and E2 worked in different programs in distinct locations and were supervised under different management; (2) there are distinct differences in the technology used to perform the duties of each position; and (3) the positions are classified differently because of the varying complexity of the machinery used in each. The instant appeal followed.
On appeal, Complainant is requesting that we reverse the final order issued by the Agency, and that we order that a hearing before an Administrative Judge be held in the matter. Complainant contends that the AJ held a trial by affidavit and that a majority of the factual findings are based solely on uncorroborated affidavits provided by Agency witnesses. Additionally, Complainant contends that new evidence shows that the Agency has recently concluded that E2's position is properly graded at the J-Band level.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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").
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have issued a summary judgment decision on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant, we note, initiated the summary judgment process by his February 7, 2012 motion requesting a decision without a hearing, he was given a comprehensive statement of the undisputed facts, he was given an opportunity to respond to the opposition and cross-motion by the Agency and statement of undisputed facts, and he had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate.
Equal Pay Act
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. EEOC, EEOC Appeal No. 01A02919 (September 12, 2000), req. for reconsideration denied, EEOC Request No. 05A10076 (August 12, 2003).
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.
We note that the EPA is limited to certain sex-based differentials in wages. The EPA does not prohibit discrimination in other aspects of employment, even those that have compensation-related consequences, such as hiring, firing, promotion, transfer, or other issues. Wiley v. Department of the Treasury, EEOC Appeal No. 01972118 (June 27, 2001) (citing Schnellbaecher v. Basking Clothing Co., 887 F.2d 124, 130 (7th Cir. 1989) (a claim of discriminatory promotions is beyond the scope of the EPA but actionable under Title VII)).
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).
We concur with the AJ's reasoning in the decision finding that Complainant is unable to establish a prima facie case of discrimination under the EPA. A review of the record evidence establishes that OST cannot be seen as a single establishment; therefore, we find that the evidence shows that Complainant and E2 work in two different programs in two different locations, supervised under different management chains. Additionally, the EBSP technology is much more complex than the PSP technology; therefore Complainant and E2 are essentially performing substantially different job duties. The EBSP program and deployment requirements are substantially greater than the PSP branch. The EBSP equipment is integrated into a "networked environment" and is very technical in nature. PSP has more types of technology that do not network together, but that stand alone as a separate screening component. EBSP Explosive Detection System technology is typically configured with multiple computer processors, large rotating gantries, and has multiplexed remote viewing stations with banks of operators. Additionally, the EBSP testing supports a significantly larger program budget, receiving approximately seventy percent of the one billion dollar stimulus package given to the Agency, for an overall budget of approximately one billion dollars.
Even if Complainant were able to establish a prima facie case of discrimination under the EPA, the Agency has successfully articulated a legitimate non-discriminatory reason other than sex for the pay disparity. Specifically, E2's position was classified at the K-Band pay level because the EBSP technology was more complex than the PSP technology. Additionally, E2 was classified at the K-Band pay level because she was previously being paid at that level after earning a promotion in 2004, and because she was laterally transferred to the new position at the K-Band pay level because of her prior work experience with the same level of complexity and responsibility she was assuming in the new position. Complainant did not present any evidence that the Agency's articulated reasons were pretext for discrimination, nor does the record contain any evidence that they were discriminatory.
Disparate Treatment: Remaining Bases
Next, we address Complainant's disparate treatment claims. To prevail in a disparate treatment claim, 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, non-discriminatory reason for its actions. Texas Department 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).
In the present case, we find that assuming arguendo Complainant established a prima facie case of sex and race discrimination, as previously addressed, the Agency articulated legitimate, nondiscriminatory reasons for the disparity between Complainant and E2's pay. Complainant did not present any evidence that the Agency's articulated reason was a pretext for discrimination, nor does the record contain any other persuasive evidence that discriminatory animus played any role here.
CONCLUSION
We find that the AJ properly dismissed the complaint on summary judgment finding that the Agency did not discriminate against Complainant because of his sex and race. Complainant was unable to establish a prima facie case of a violation under the EPA, or alternatively that the Agency's asserted legitimate non-discriminatory reason for the pay disparity was a pretext for discrimination based on sex or race. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Agency's final order implementing the AJ's decision is AFFIRMED.
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).
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
__4/24/17________________
Date
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.
2 Although the Transportation Security Administration (TSA) is a Federal agency, it does not use the General Scale (GS) like most Federal agencies. The TSA uses a graded Pay Band system. An employee in the K-Band would make more money than one in the J-Band.
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