Shameka M., Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120122462 Hearing No. 510-2011-00104X Agency No. 096309300913 DECISION On May 9, 2012, Complainant filed an appeal from the Agency's April 9, 2012, 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Education and Training Technician, YC-1702-01, Student Control, within the Personnel Management Division in the Agency's Naval Air Technical Training Center in Pensacola, Florida. Prior to a change following a Management Efficient Organization (MEO) process, Complainant's position was graded by two classifiers as a GS-6 Supervisor position. When the MEO changes took effect in October 2006, Complainant's position title was changed to Supervisory Training Technician in Student Control, GS-1702-06. The MEO contract did not allow for any changes in position, grade or series. On February 17, 2008, the organization moved away from the GS pay plan system and went to the National Security Personnel System (NSPS), and as a result Complainant's position was rated YC-1702-01. Complainant's pay remained the same at $43,076.00, including locality pay. Complainant alleged that she is paid less than other supervisors at the Naval Air Technical Training Center. Complainant stated that her assignments increased after the MEO changes because she had the responsibility of supervising five GS-5 employees and four GS-4 employees, and she did not receive a change in pay, grade, or other compensation. Complainant stated that she was placed in a position description that had been written as a GS-9, but she is only paid at the GS-6 level. On May 21, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (52), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and the Equal Pay Act of 1963 on January 27, 2009, with regard to assignment of duties and equal pay for work performed in comparison to other similarly situated employees outside her protected class. 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 assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on February 27, 2012. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. ANALYSIS AND FINDINGS 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"). Improper Complaint Processing For the first time on appeal, Complainant raises allegations of improper processing of her complaint. Specifically, Complainant asserts that: the investigator had a noticeably disconcerted attitude when she saw that Complainant was white; the investigator never told her the time or place of the investigation until someone came to her desk to get her; she was denied representation; she was mocked by the investigator; the investigator purposefully guided the investigation away from the MEO and focused on the NSPS; and the Agency and the AJ engaged in ex parte communications. We note that any claims regarding the improper processing of a complaint must be raised during the processing of the underlying complaint. Specifically, a Complainant must raise any dissatisfaction with the processing of a complaint before the AJ issues a decision on the complaint, the Agency takes final action on the complaint, or either the AJ or the Agency dismiss the complaint. EEOC Management Directive 110, Section IV (D)(3), as revised, November 9, 1999. Additionally, no allegations regarding improper processing of a complaint that are raised after a decision by an AJ or an Agency will be accepted by the Agency, the AJ, or the Commission's Office of Federal Operations. Id. After a review of the record, we find that Complainant did not offer any evidence that would establish that she raised the issues with the processing of her complaint prior to this appeal, and she offered no persuasive arguments for us to waive this requirement. As a result, we dismiss the allegations of improper processing of her EEO complaint. Summary Judgment We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing 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 careful review of the record we find that the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she was given an opportunity to respond to the motion, and she was given a comprehensive statement of undisputed facts. Further, even if we assume all facts in favor of Complainant, a reasonable fact finder could not find in Complainant's favor, as explained below. We find that no genuine issues of material fact exist that would require a hearing. Equal Pay Act Violation The U.S. Supreme Court articulated the requirements for establishing a prima facie case of discrimination under the Equal Protection Act (EPA) in Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). To establish a prima facie case of a violation of the EPA, Complainant must show that she received less pay than a male employee 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). 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)). The AJ found that Complainant failed to establish a prima facie case of discrimination under the EPA because she cannot establish that she had the same or substantially similar job duties as a male, but was paid less. The record identifies four male comparators who are all supervisors and are under the same supervisory chain of command as Complainant. The Agency asserted that while each of these individuals are supervisors like Complainant, they each did significantly different work that required specific technical skills, education, or experience. Report of Investigation (ROI) at 309-310. The record supports the Agency's assertions that the comparators did not perform equal work requiring equal skill, effort and responsibility compared to Complainant. Complainant's duties as a Supervisory Training Technician in Student Control include: updating and maintaining student information in a database; developing and tracking students and answering questions about students' status; planning work to be accomplished; evaluating employee performance; and counseling and/or instructing subordinates on work and administrative matters. The record reveals that the comparators' positions all had different series numbers from Complainant's position, and they all performed very different work from Complainant. For example, the first male comparator (C1) is a supervisory management analyst, YC-301-01, who is responsible for overall program direction, execution, and review of all activities for the Corporate Support Division. The second male comparator (C2) is a supervisory instructional systems analyst specialist, YC-1750-01, and he serves as the Site Manager, supervises GS-11 employees, and is the Command's primary liaison. The third male comparator (C3) is a supervisory IT specialist, YC-2210-02, whose position requires unique and highly qualified information technology skills. The fourth male comparator (C4) is a supervisory international military student manager, YA-301-01, who is responsible for analyzing and managing all aspects of training relating to the Foreign Military Sales and International Military Education Training Programs, and to assist the international military students in acquiring a balanced understanding of U.S. society, institutions and goals. The record establishes that no other employee performed the same or similar job as Complainant. ROI at 309-310. As a result, we find that Complainant failed to establish a prima facie case of discrimination under the EPA. Disparate Treatment Complainant alleged that she was subjected to discrimination on the bases of sex, age, and in reprisal for prior protected EEO activity. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, the Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). In order to establish a prima facie case of sex and/or age discrimination under Title VII, Complainant must show the following: (1) she was a member of the protected class; (2) an adverse action was taken against her; (3) a causal relationship existed between her membership in the protected class and the adverse action; and (4) similarly situated employees outside of her protected class were treated differently. McDonnell Douglas, 411 U.S. at 802 Here, the AJ found that Complainant failed to establish a prima facie case of age or sex discrimination. As we discussed above, the record reflects that no other employee performed the same or similar job as Complainant. As a result, Complainant has not established that any similarly situated employees outside of her protected groups were treated differently than she was treated. In order to establish a prima facie case of reprisal for prior protected EEO activity, Complainant must establish that: (1) she engaged in protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such manner that a retaliatory motive may be inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005). See Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (finding that a three-month period was not proximate enough to establish a causal nexus). After a review of the record, we agree with the AJ that Complainant failed to establish a prima facie case of reprisal. The record reveals that Complainant previously filed an administrative grievance alleging fraud. There is nothing in the record that would indicate that the grievance included allegations of discrimination or anything else that would qualify as participation in a prior protected EEO activity. Additionally, there is no evidence in the record that Complainant opposed unlawful discrimination in any manner. As a result, we find that Complainant failed to establish that she engaged in a protected EEO activity, and therefore failed to establish a prima facie case of reprisal. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision because a preponderance of the evidence in the record does not establish that discrimination existed as alleged. 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. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408) You are authorized under section 16(b) of the Fair Labor Standards Act (29 U.S.C. § 216(b)) to file a civil action in a court of competent jurisdiction within two years or, if the violation is willful, three years of the date of the alleged violation of the Equal Pay Act regardless of whether you have pursued any administrative complaint processing. The filing of the 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 September 11, 2014 __________________ Date 2 0120122462 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120122462