Janice Coxey v. Department of the Navy 01982443 July 19, 2001 . Janice Coxey, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency. Appeal No. 01982443 Agency No. DON-94-68876-002 DECISION Complainant timely initiated an appeal from a final agency decision (FAD) concerning her complaint of unlawful 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 Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The appeal is accepted pursuant to 29 C.F.R. § 1614.405. Complainant alleged that she was discriminated against on the bases of age (over 40) and sex (female)<1> when she was not promoted to a GS-301-12 Foreign Disclosure Control Specialist position in the Navy International Program Office (IPO). The record reveals that during the relevant time, complainant was employed as a Disclosure Control Specialist, GS-318-11 at the agency's Navy Secretariat and Staff Office, Washington, D.C. Believing she was a victim of discrimination, complainant sought EEO counseling and subsequently filed a formal complaint on April 21, 1994. At the conclusion of the investigation, complainant was informed of her right to request a hearing before an EEOC Administrative Judge or alternatively, to receive a final decision by the agency. Complainant requested that the agency issue a final decision. In its FAD, the agency concluded that management articulated legitimate, nondiscriminatory reasons for its actions. Specifically, management officials stated that complainant's position was properly classified at the GS-11 grade level and due to limited financial resources, her position was not upgraded to the GS-12 level during the period at issue. The agency noted, in an effort to show pretext, complainant argued that: (1) male employees in other divisions were advanced to the GS-12 level as a part of their career ladders without difficulty; (2) a desk audit supported complainant's entitlement to a GS-12 promotion; (3) she was performing at the same level as other GS-12s in the office; and (4) management's actions constituted a violation of the Equal Pay Act (EPA). The agency determined that complainant failed to establish pretext for the following reasons. Management officials indicated that by May 1993, the Director of the Foreign Disclosure Control Division (D1) sought to facilitate the promotions of six subordinate females, including complainant. Complainant was one of three GS-11s seeking promotion to the GS-12 grade level and the other three employees were seeking promotion to lower level positions at the GS-7 level or below. The proposal to promote complainant was also supported by the Director of Technology, Security Directorate (D3), complainant's third-level supervisor because he believed that complainant was a good employee who was deserving of reward. However, the IPO Director (D4) denied the three GS-12 promotions while permitting the three lower grade promotions. D4 based his decision on the following considerations. D4 stated that he did not grant the supervisors the authority to upgrade the GS-12 level promotions due to the substantial increase in payroll dollars at that level. D4 further stated that funding for IPO had actually decreased by approximately $150,000.00 between FY 1992 and FY 1994. While most other Navy organizations had to undergo reductions-in-force (RIFs) to accommodate budget cuts, IPO was able to avoid a RIF by monitoring payroll costs and position management. Consequently, this meant that promotions had to be limited and the organization occasionally restructured. D4 also affirmed that complainant was properly graded at a GS-11. In addition, the agency determined that the evidence of record does not support complainant's contention that management's failure to promote her was based on discriminatory animus. In this regard, the agency noted that the evidence shows that three females in lower graded positions were promoted during the relevant time period. Furthermore, evidence of record shows that several females over the age of forty received career-level promotions (including promotions to the GS12 and GS14 levels) in Fiscal Year (FY) 1992, 1993 and 1994. D4 also stated that the reason some positions were filled at higher levels during the relevant period while others were not was because those who were promoted were in positions deemed more critical than others. In addition, the agency determined that complainant failed to prove a violation of the EPA. With respect to the one man (C1) that complainant identified as a comparison employee, the agency determined that complainant and C1 were not performing comparable work because the levels of supervision and scope of responsibilities of their positions appear to be quite different. C1 was reassigned into his position of Disclosure Control Specialist, GS-301-13 in November 1992. A review of his position description indicates that he is supervised by the Division Director, has responsibility for advising the Director of Export Control with regard to policy matters, and assists in the development, interpretation, and promulgation of National and Department of the Navy policies governing the disclosure of classified information and technology. The complainant's position description conversely indicates that she is supervised by the Division Director through a Branch or Section Head. In addition, she performs detailed analysis of particular situations to ascertain if information should be approved for disclosure, or access to specific information or installations should be approved. With respect to other males in the 301 series promoted throughout the organization, a review of the promotions between January 1990 and April 1994 indicates that there were 14 promotions (two went to males and 12 went to females). The record indicates that one male and one female were promoted to the GS-13 level, four females and no males were promoted to the GS-12 level. With respect to the only man promoted above the GS-11 level (C3), the record shows that he was promoted to the position of Security Assistance Specialist, GS-301-13 in January 1994. C3's position description indicates that he exercises program management responsibilities for assigned international programs and advises the Director of Navy IPO concerning the development of international agreements; serves as technical authority in the areas of technology transfer and agreement negotiation; and represents the Department of the Navy at meetings concerning the formulation of security assistance policies and responsibilities that cut across military departments. The agency determined that complainant's position description indicated no responsibilities of this scope or magnitude. The agency determined that the comparison male employees who were promoted above the GS-11 level held positions significantly different in skill and responsibility from complainant's position. Accordingly, the agency concluded that complainant did not prove a violation of the EPA. On appeal, complainant contends that the evidence of record proves that the agency's articulated, legitimate reasons for its employment actions were pretextual. Specifically, complainant argues that contrary to the agency's conclusions in its Final Agency Decision (FAD), the record shows, inter alia, that: (1) complainant was performing at the GS-12 level; (2) contrary to D4's reliance on “budgetary constraints,” 12 personnel received career-ladder promotions during the relevant period (one of which was a promotion to the GS-12 level); and (3) there is no evidence in the record to support D4's explanation that only “critical” personnel were promoted during the relevant time frame. The agency generally restates arguments previously made and requests that we affirm its FAD. Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (requiring a showing that age was a determinative factor, in the sense that "but for" age, complainant would not have been subject to the adverse action at issue), the Commission agrees with the agency that complainant failed to present evidence that more likely than not, the agency's articulated reasons for its actions were a pretext for unlawful discrimination. Even assuming the record supports a finding that D4's explanation for the decision not to promote complainant was disingenuous, there is no evidence in the record that D4 was motivated by discriminatory animus. Given the number (and grade levels) of women promoted during the relevant time period and the lack of any evidence of discriminatory animus, the finding that D4 was not completely credible is not enough, in this case, to prove, by a preponderance of the evidence, that D4 was motivated by sex or age animus when he failed to promote complainant. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). With respect to complainant's EPA claim, the 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). A complainant must show that she received less pay than an individual of the opposite gender for equal work, requiring equal skill, effort and responsibility, under similar working conditions within the same establishment. See 29 C.F.R. § 1620.14(a); see also, Telford v. Department of the Army, EEOC Appeal No. 01973892 (November 2, 1999). Once the complainant has met this burden, 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; or (4) a differential based on any other factor other than sex. See 29 U.S.C. § 206(d)(1); see also, Corning Glass Works, 417 U.S. at 196-197. The requirement of “equal work” does not mean that the jobs must be identical, but only that they must be “substantially equal.” Corning Glass Works at 203, n. 24. In the past, courts and the Commission have looked to whether jobs share “a ‘common core' of tasks, i.e., whether a significant portion of the two jobs is identical.” Fallon v. Illinois, 882, F.2d 1206, 1209 (7th Cir. 1989); see also, Telford, supra. In light of these principles, and after a careful analysis of the record in its entirety, the Commission finds that complainant has failed to establish a prima facie violation of the EPA. The record establishes that the males who received promotions above the GS-11 level had very different responsibilities and performed very different tasks than complainant. Therefore, after a careful review of the record, including complainant's contentions on appeal, the agency's response, and arguments and evidence not specifically addressed in this decision, we AFFIRM the FAD. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0900) The Commission may, in its discretion, reconsider the decision in this case if the complainant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests to reconsider, with supporting statement or brief, must be filed with the office of federal operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0900) 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. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z1199) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations July 19, 2001 __________________ Date 1 Complainant also alleged reprisal in her formal complaint. However, this basis was not accepted by the agency as a basis for investigation and complainant does not challenge the agency's accepted bases on appeal.