U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Heidi B.,1 Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services, Agency. Appeal No. 0120152308 Agency No. HHS-OS-0051-2014 DECISION On June 25, 2015, Complainant filed an appeal from the Agency's May 26, 2015, final decision 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 Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e(k) of 1978, and the Equal Pay Act (EPA) of 1963, as amended, 29 U.S.C. § 206(d) et seq. For the following reasons, the Commission REVERSES in part the Agency's final decision and AFFIRMS in part the Agency's final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist at the Office of Secretary (OS), Assistant Secretary for Administration (ASA), Office of Human Resources (OHR), National Capital Region (NCR), Cleveland, Ohio. Complainant's first level supervisor (S1) was the Supervisory HR Specialist, OS, ASA, OHR. A male Comparative transferred from the General Services Administration to OHR in Atlanta, Georgia as a GS-13 HR Specialist, GS-0201-13 on January 20, 2008. The Comparative was reassigned to S1's team in January 2011. Complainant began working at the Agency on October 10, 2010, as a Human Resources Specialist, GS-0201-09 in Cleveland, Ohio. Complainant was promoted to the GS-11 level effective October 9, 2011. The Standard Form (SF) 50 stated the full performance level for her position was GS-12. Thereafter, S1 requested Complainant be promoted to the GS-12 level before she had 12 months in at the GS-11 level based on her disabled veteran's status. As a result, Complainant was promoted to the GS-12 level effective July 15, 2012. S1 stated it was her view that by changing the authority of Complainant's appointment to veteran's status, it would permit promotional potential to a GS-13, when Complainant met the time in grade requirement one year later in July 2013. The promotion to the GS-12 was approved by the Director at that time. At the same time, S1 asked the Director to include a full promotion potential of GS-13; however, the Director stated there was no funding for it. Originally, the SF-50 for the GS-12 promotion listed the promotion potential was to GS-13. Subsequently, on January 24, 2013, a corrected SF-50 was processed, which listed full promotion potential at the GS-12 level. The record contains an Employee Performance Plan for Complainant for the appraisal period of April 6, 2012, to December 31, 2012. The Performance Plan listed Complainant's position as a Human Resources Specialist (Classification), GS-0201-11T13. Under Critical Element 2 Classification Transaction and Technical Competency, the Plan stated that the employee: provides timely and sound classification services including advising managers on developing complex position descriptions; provides advisory services on complex reorganizations; performs desk audits and completes reports as appropriate, including completes the HR portion of classification appeals; ensures that position descriptions contain a clear nexus between the duties and factor levels and are classified with the proper titles, series, and grade; ensures that end-products meet the established time frames; follows up via e-mail, phone calls to ensure consistent communication with customers and improve business relationships within two work days of request; ensures accountability processes related to HR policies, and practices are adhered to; ensures position builds are accurate and input into the Capital HR system in a timely manner; and ensures organization books, staffing lists, and position descriptions are kept current and easily retrievable. The record also contains an Employee Performance Plan for the Comparative for the appraisal period of April 6, 2012, to December 31, 2012. The Performance Plan listed the Comparative's position as a Human Resources Specialist (Classification), GS-0201-11T13. The Comparative's Performance Plan contains the same language as Complainant's Performance Plan. In January 2014, the Comparative was reassigned from S1's team and began working for another supervisor in OHR. Complainant supplied a copy of an organizational chart for the National Capital Region (NCR) HR Center Organization as of January 27, 2014. The organizational chart showed that NCR was divided between two Integrated Teams. Team 1 had a Team Manager, a Team Lead, and then listed several HR Specialists (General) and Comparative 1 as the only Sr. HR Specialist (Classification). Team 2 had a Team Manager, a Team Lead, and then listed several HR Specialists (General) and Complainant as the HR Specialist (Classification). In March 2014, Complainant requested a desk audit of her position. Supervisory Contract Classifier (Person A) assigned a Contract Classifier (Person B) to conduct an audit of Complainant's position on May 27, 2014. On June 2 and 6, 2014, the Contract Classifier conducted interviews with Complainant and S1 regarding Complainant's duties. Additionally, Complainant completed a Job Assessment Questionnaire regarding her duties. Based on the information gathered, the Contract Classifier completed a draft audit report, which he forwarded to Person A. The draft report was shared with S1. S1 told S3 that the report reflected that Complainant should be a GS-13. S1 stated that knowing the restricted budgetary environment, she limited Complainant's independence when classifying higher-level positions in order to conform to the GS-12 level. This was reported to the Contract Classifier who modified the assessment accordingly and issued a completed audit report. On August 29, 2014, the Contract Classifier issued his audit evaluation which found that Complainant's position was properly graded as GS-0201-12. On September 4, 2014, Complainant filed an EEO complaint. The Agency defined Complainant's complaint as alleging that the Agency discriminated against her on the bases of race (Caucasian), national origin (Polish), sex (female),2 color (white), and reprisal for prior protected EEO activity when: 1. Complainant was paid less than her male coworker for substantially equal work under equal working conditions from 2011 to present; 2. Complainant continued to be paid less than her male coworker even after a desk audit conducted in July 2013, concluded she was performing at the GS-13 level; 3. On July 25, 2013, Complainant was informed her position qualified at the GS-13 level but management chose not to give her the accretion of duties and changed the promotion potential back to GS-12; and 4. In retaliation on August 21, 2014, certain duties Complainant performed were removed.3 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 Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. In its final decision, the Agency stated that although Complainant and the Comparative were different grade levels, their respective performance plans were essentially the same, they worked in the same office, for the same supervisor, and they were largely performing the same classification duties. However, the Agency stated the audit of Complainant's position revealed she did not have the extent of independence and latitude in her classification work which would have been commensurate with performing duties at the GS-13 level. Thus, the Agency found Complainant did not establish a prima facie claim of an EPA violation. The Agency stated that even if Complainant established a prima facie case, it articulated legitimate, nondiscriminatory reasons for its actions. The Agency noted that S1 explained that Complainant was selected for a GS-9 position with promotion potential to a GS-12. Thus, the Agency stated Complainant was not eligible for a non-competitive promotion to a GS-13. The Agency also noted that the Comparative had been transferred as a GS-13. The Agency claimed that Complainant failed to present information to show that she performed with the same level of independence and latitude as a GS-13, which could have permitted management to noncompetitively reclassify her. The Agency stated that Complainant failed to establish that the Agency violated the EPA. With regard to claim (2), the Agency noted Complainant is in a protected class for race, sex, national origin, color, and was pregnant or had given birth during the identified events. The Agency noted Complainant compared herself to the Comparative, who she alleged was outside her protected classes for all of the alleged bases. However, the Agency stated the Comparative was not similarly situated since he already held the GS-13 position prior to joining the Agency. In addition, the Agency stated his placement in a GS-13 position was based on the grade he held at the time he was transferred and was not related to a desk audit or some other type of promotional action. The Agency stated assuming arguendo that Complainant established a prima facie case, it presented legitimate, nondiscriminatory reasons for its actions. With regard to the desk audit, the Agency noted the Contract Classifier stated he provided copies of his draft assessment to Complainant and S1 for their review and comment. The Agency noted the Contract Classifier explained that initially Complainant and S1 asserted that Complainant had a great deal of independence and latitude in her classification work. The Agency stated that the Contract Classifier later learned that Complainant's scope of authority and independence were not as broad as initially had been reported. The Agency stated the Contract Classifier made revisions to his report based on this. As to claim (3), the Agency stated that S1 proposed Complainant's promotion potential be raised to a GS-13 at the time she proposed to have her promoted to the GS-12. S1 stated that management declined to raise Complainant's promotion potential. The Agency stated that the Specialist who prepared the paperwork incorrectly changed the promotion potential to GS-13. The Agency stated that when this was discovered, management corrected the administrative error. With regard to claim (4), the Agency stated Complainant engaged in protected EEO activity when she sought EEO counseling in July 2014. The Agency noted Complainant claimed the removal of her classification duties constituted an adverse management decision. The Agency argued the change in duties did not negatively affect Complainant's grade level or pay status. Thus, the Agency argued Complainant did not establish a prima facie claim or reprisal. The Agency stated that assuming, arguendo, that Complainant established a prima facie case, management presented legitimate, nondiscriminatory reasons for its actions. The Agency noted that S1 stated management had previously decided to transfer a substantial portion of her office's work to contractors, including classification duties. Thus, the Agency stated those actions were not retaliatory. The Agency determined Complainant failed to meet her burden of proof to establish by a preponderance of evidence, that the management explanations were a pretext for discrimination. Arguments on Appeal On appeal, Complainant disputes the definition of the claims as identified by the Agency. With regard to her EPA claim, Complainant argues the record shows that she and the Comparative performed work substantially equal in skills, effort, and responsibility under similar conditions. With regard to responsibility, she notes that both she and the Comparative received assignments the same way, from the customers, and then delivered finished products to the customers without the supervisor reviewing the product. Complainant states that she and the Comparative had similar extent of independence and latitude in their classification work. Moreover, Complainant alleges that she had more independence and technical authority as she represented the office in various groups as the technical subject matter expert, while the Comparative did not. Complainant also notes the Agency changed her promotion potential back to GS-12 in January 2013, a few days after she gave birth to her first child. Complainant disputes the Agency's explanation for this action, that it was correcting an administrative error. Specifically, she alleges that the Agency had lots of time to correct the action if they thought it was a mistake, but they only changed the promotion potential right after the birth of her daughter and when Complainant was on maternity leave. In addition, Complainant argues that despite the results of the desk audit, she met all the requirements to establish a prima facie EPA violation. Moreover, Complainant notes that S1 told her that as a result of the desk audit she will not be performing classification for GS-14 and higher positions to reduce her higher graded duties and bring her position down to the GS-12 level. Complainant states she was then told that all of her classification duties were removed. Complainant argues that the desk audit must reflect the duties that were performed when the desk audit was requested, not the Agency's actions after the audit was started. Additionally, Complainant claims that the Agency discriminated against her when the Agency did not provide reasonable lactation room accommodations. Finally, Complainant clarifies that she is only claiming retaliation with regard to the removal of her official duties. With regard to her retaliation claim, Complainant states the Agency's claim that her classification duties were transferred to a contractor prior to August 21, 2014, was not true. Complainant explains S1 removed higher graded duties (classification of positions GS-14 und GS-l5) as a result of the desk audit at the beginning of August 2014. However, she states the removal of the entire classification duties happened after management was contacted by the EEO Counselor. Complainant states the Comparative's classification duties were not removed. Complainant states that even after the reorganization took place in November 2014, the Comparative kept his classification duties and transferred to the Policy Department. In response to Complainant's appeal, the Agency notes that in its final decision, it concluded Complainant had not established a prima facie case of discrimination under the EPA because the desk audit of her position concluded her duties were not at the GS-13 level. The Agency notes that it also found there were legitimate, nondiscriminatory reasons for the difference between her GS level and the Comparative's GS-level; specifically that she was on a GS-9 through GS-12 career ladder position, not eligible for noncompetitive promotion to the GS-13 level, and that the Comparative had been transferred to work in the unit as a GS-13. The Agency notes that although "legitimate, nondiscriminatory reason" is not the proper terminology for refuting Complainant's EPA claim, the underlying explanation is generally the same as the affirmative defense raised to an EPA claim, with the difference being whether the explanation must only be articulated or proven by a preponderance of the evidence. The Agency claims its affirmative defense is proven by a preponderance of the evidence. Specifically, the Agency claims that its standard that non-competitive promotion was available only up to the GS-12 level, with competition required for higher grades, is a merit system that is a defense to the claims of pay disparity. The Agency states its determination to cap non-competitive career ladder promotion at a level, above which employees must obtain promotion through a competitive process, constitutes the organization and predetermined criteria sufficient to meet the affirmative defense standard. The Agency also argues that even if the career-ladder standard is not deemed a merit system, it is nevertheless a "factor other than sex" which is a defense to Complainant's EPA claim. The Agency reiterates its position that Complainant was not subjected to disparate treatment regarding her pay or when her SF-50 was corrected. The Agency also restates its argument that the change in Complainant's duties does not constitute retaliation. The Agency claims that the change in job responsibilities is insufficient to constitute materially adverse treatment. The Agency claims that Complainant cannot establish a prima facie case of reprisal due to the temporal order of events in this matter. Specifically, the Agency claims the reorganization which changed Complainant's duties was decided upon in early 2014, long before Complainant initiated EEO activity, and the Agency stated that a notice of potential Reduction in Force was issued to NCR employees further demonstrates that the reorganization was already in the process of being implemented prior to the Agency officials being made aware of her EEO activity. The Agency argues that even if Complainant established a prima facie case of retaliation, it articulated legitimate, nondiscriminatory reasons for the change in duties which Complainant did not establish was a pretext. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision 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. (Aug. 5, 2015) (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"). At the outset, we note that there is a dispute between the parties regarding the definition of the four claims identified by the Agency. Upon review, we find the above mentioned four claims are properly characterized as three distinct claims. First, we find Complainant alleged a claim she was paid less than a male Comparative (claims 1 and 2 combined). This is both an EPA claim and a Title VII claim based on sex (female). With regard to her sex-based pay claim, we note that although the Agency defined Complainant's claim as alleging that she was denied equal pay beginning in 2011, we find the record reveals that Complainant is only claiming that she was denied equal pay from July 2013 forward. Second, we find Complainant alleged that she was subjected to discrimination when she was not promoted to the GS-13 level (claim 3 above). We find that Complainant is only alleging discrimination based on race, color, sex, and national origin with regard to her non-promotion claim. Third, we find that Complainant claimed she was subjected to retaliation when the Agency took away her duties in August 2014 (claim 4 above). Pregnancy Discrimination Act Next, we address Complainant's contention that she was discriminated against when the Agency did not provide her reasonable lactation room accommodations. The record reveals that Complainant filed her formal complaint which included a claim that the Agency did not provide her reasonable breast feeding accommodations. Specifically, Complainant alleged that the accommodation provided required her to travel 20-25 minutes both ways (not including pumping) from her building to another building. She also stated that the room provided was very small, dirty, congested, and used as a storage room for spare office furniture. On October 16, 2014, the Agency issued a letter of acceptance, identifying the four claims stated above. The Agency advised Complainant that if she believed the claims have not been correctly identified, she should contact the Agency in writing within seven days of receipt of this letter and specify why she believes the claims have not been correctly identified. On appeal, Complainant supplies a letter dated October 21, 2014, addressed to the EEO Office in which she attempts to correct the claims that were stated in the Acceptance Letter she received on October 20, 2014. In the letter, Complainant states that the Agency did not provide her reasonable breast feeding accommodations. Complainant provides a copy of the coversheet to a facsimile addressed to the EEO Office regarding the "Acceptance of EEO Complaint Correction of Claims." Additionally, Complainant produces a copy of a Transmission Verification Report dated October 25, 2014, showing that her facsimile was sent to the Agency's EEO Office. The Agency states this claim regarding the lactation room is a separate issue unrelated to the Agency's promotion decisions. The Agency states that the Pregnancy Discrimination Act does not require any affirmative accommodations. The Agency argues that the evidence relating to lactation is only relevant where it is presented in the context of other employees with similar conditions receiving more favorable treatment, which the Agency states Complainant has not provided. The Commission has held that a complainant's status as a nursing mother, is protected under the Pregnancy Discrimination Act (Pub. L. 95-955) (hereafter PDA). See O'Brien v. National Security Agency, EEOC Appeal No. 01951902 (May 27, 1997). The PDA requires that an agency treat women affected by pregnancy, childbirth, or related medical conditions the same for all employment related purposes, as other persons not so affected but similar in their ability or inability to do work. 42 U.S.C. 2000e(k) (1994). Upon review, we note that the Agency's final decision did not address Complainant's claim that she was denied the reasonable accommodation of a lactation room. In addition, the record reveals that this issue was not subject to investigation by the Agency. Moreover, the Agency did not even acknowledge Complainant's claim until it submitted its brief in opposition to Complainant's appeal. The Agency also addresses this claim on the merits, which we find is inappropriate prior to an investigation. In the interest of justice, we remand Complainant's claim regarding the denial of a reasonable accommodation to the Agency for further processing. 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). All forms of pay are covered by the EPA, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits. See EEOC Compliance Manual, Number 915.003, Section 10: Compensation Discrimination (December 5, 2000); 29 C.F.R. § 1620.10. Once a complainant has met the burden of establishing a prima facie case, 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)). A job classifications system is a defense to an EPA claim only where the classification system accurately reflects job duties and/or job-related qualifications and is uniformly applied to men and women. EEOC Compliance Manual, Number 915.003, Section 10: Compensation Discrimination (December 5, 2000) (citing Lindale v. Tokehim Corp., 145 F.3d 953, 958 (7th Cir. 1998)). A classification system offers no defense where the employee performed work beyond the job classification with the employer's knowledge and consent. Id. (citing EEOC v. Maricopa County Community College District, 736 F.2d 510, 515 (9th Cir. 1984)). Commission regulations state that application of the equal pay standard is not dependent upon job classification titles, but depends on actual job requirements and performance. 29 C.F.R. §1620.13(e). With regard to Complainant's claim under the EPA, Complainant stated she and a male Comparative were the only HR specialists who primarily performed classification duties for OHR. She claimed their duties were essentially the same, as both of them were classifying positions, but for different organizations within the Agency. Complainant alleged that the Agency paid her less than the Comparative for performing substantially equal work. Complainant stated that she should have been paid at the GS-13 level beginning July 2013, because she was performing at the GS-13 level at that time; however, she was paid at the GS-12 level. In her affidavit, S1 acknowledged that Complainant and the Comparative performed work substantially equal in skill, effort, and responsibility under similar working conditions. Moreover, in its final decision, the Agency acknowledged that although Complainant and the Comparative were at different grade levels, their respective performance plans were essentially the same, they worked for the same supervisor, and they were largely performing the same classification duties. However, the Agency claimed that an audit of Complainant's position revealed that she did not have the extent of independence and latitude in her classification work which would have been commensurate with performing duties at the GS-13 level of pay. Thus, the Agency argued Complainant did not establish a prima facie case under the EPA. Upon review, we find the record reveals that the NCR, HR team had HR Specialists from different cities doing HR functions across the country. In her affidavit, Complainant stated that the work she performed was substantially equal in responsibility as the work performed by the Comparative. She stated there was no distinction, other than the customers. Complainant alleged that during the relevant time she and the Comparative were the only two HR Specialists doing classification. Complainant noted that they were both performing the proper grade and classification of federal employees in different operations divisions throughout the Agency. Complainant explained that they served certain customers that were assigned by the supervisor, but the tasks involved the same work. Complainant stated that the customers were in different operating divisions in the Agency. Complainant stated the degree of difficulty and complexity were the same. Complainant noted the working locations were different but the environment was the same - in an office. Complainant provided reports from the Agency's system which she explained showed her output and the output from the Comparative to support her assertion that they were performing equal work. The record contains Excel documents (three with Complainant's name and three with the Comparative's name) from years 2011, 2012, and 2013 which Complainant stated were Workload Data documents showing the kind of classification performed and amount of classification completed by both of them. These Excel documents indicate that Complainant and the Comparative were performing the same duties. The record also reveals, as the Agency conceded, that their respective performance plans were essentially the same. In addition, we note the January 2014 organizational chart also shows that Complainant and the Comparative were the only two HR Specialists (Classification) while the others on their respective teams were HR Specialists (General). We reject the Agency's contention that the audit of Complainant's position defeated her prima facie case under the EPA. First, we note that the audit did not compare the duties Complainant performed with that of the identified Comparative. Second, we find the record does not show that the Comparative's job involved more responsibility than Complainant's job. Specifically, we note in her affidavit S1 stated "[b]roadly speaking, what distinguishes a GS-13 from a GS-12 are supervisory oversight required and what level they are working - e.g. program level or departmental. Level of control and influence is a major factor also." However, in her affidavit S1 specifically acknowledged that Complainant and the Comparative performed work substantially equal in responsibility. The Contract Classification Specialist (Contract Classifier) who performed the audit stated in his affidavit that based on his conversation with Complainant and S1, he learned that Complainant had a great deal of independence and latitude in her classification work. The Contract Classifier stated that after he forwarded his initial evaluation to his supervisor (Person A), and apparently based on subsequent discussions with Agency officials, Person A informed him that S1 now stated that Complainant's scope of authority and independence was not as broad as had initially been reported to him by Complainant and S1. S1 stated that she obtained a copy of the audit report, which she mistakenly believed was a final version showing that Complainant's position was a GS-13. The record reveals that S1 verbally told Complainant and S3 that the audit showed Complainant's job was at a GS-13 level. S3 stated that he then asked S1 what duties Complainant was doing that warranted a GS-13 grade. S1 stated that she then began making plans to remove some of Complainant's duties to conform to the GS-12 level. The record reveals that the week of August 21, 2014, the Agency informed Complainant that it was removing some of her classification duties. Subsequently, the record reveals that the Agency informed the Contract Classifier on August 28, 2014, that it had removed some of Complainant's duties and that the removal of these duties was reflected in the final Evaluation Statement finding Complainant's position was properly classified as a GS-12. In considering whether Complainant established a prima facie case under the EPA, the focus is on the duties Complainant was performing at the time she raised her claim beginning in July 2013. Thus, we find the final audit evaluation, which based its ultimate findings on Complainant's duties that were removed in August 2014, does not defeat Complainant's prima facie case. Rather, we note since Complainant was paid at a lower grade level for doing substantially the same job as the Comparative, we find that she established a prima facie EPA violation. Once a complainant has established a prima facie case under the EPA, 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. In the present case, the Agency did not advance any of the four affirmative defenses in its final decision. Rather, the Agency proceeded to present what it claimed was a legitimate, nondiscriminatory reason for its actions, which is not the proper analysis for an EPA case. However, on appeal, the Agency states its claimed legitimate, nondiscriminatory reason amounted to its affirmative defense. Thus, we will consider whether the Agency's claimed legitimate, nondiscriminatory reason qualifies under the available affirmative defenses. Specifically, in its final decision the Agency stated that Complainant was originally selected for a GS-9 position with promotion potential to GS-12. Thus, the Agency claims that Complainant was not eligible for a non-competitive promotion to GS-13. Further, the Agency noted that the Comparative had been transferred to OHR, NCR as a GS-13. The Agency claims that this constituted a defense as a bona fide merit system. An employer may lawfully compensate employees differently on the basis of a bona fide seniority, merit, or incentive system. EEOC Compliance Manual, Section 10: Compensation Discrimination (Dec. 5, 2000). A seniority system rewards employees according to the length of their employment. A merit system rewards employees for exceptional job performance. An incentive system provides compensation on the basis of the quality or quantity of production. To be a bona fide system: it must not have been adopted with discriminatory intent; it must be based on predetermined criteria; it must have been communicated to employees; and it must have been applied consistently and even-handedly to employees of both sexes. Id. A merit system, to operate as a defense, must be a structured procedure in which employees are evaluated at regular intervals according to predetermined criteria, such as efficiency, accuracy, and ability. Id. (citing Willner v. University of Kan., 848 F.2d 1023, 1031 (10th Cir. 1988), cert denied, 488 U.S. 1031 (1989)). The merit system can be based on an objective measurement such as a test or a subjective rating. However, a merit system that is subjective should be strictly scrutinized to assure that it is consistently applied. Id. (citing Brock v. Georgia Southwestern College, 765 F.2d 1026, 1036 (11th Cir. 1985)). Upon review, we find the Agency failed to meet its burden of establishing a merit system under the applicable guidelines. Additionally, we consider whether the difference in pay can be justified by a differential based on any factor other than sex. After a careful review of the record, we conclude that the Agency has failed to meet its burden of proof. In the present case, the Agency appears to rely upon its job classification system as a defense to Complainant's prima facie case. In this regard, the Agency notes that the Comparative was classified as a Human Resources Specialist, GS-0201-13 and Complainant was classified as a Human Resources Specialist, GS-0201-12. As noted above, however, a job classification system is no defense to a prima facie violation of the EPA if an investigation shows that it does not accurately reflect the actual duties performed by individuals in the different classifications. Where an investigation shows that people in different grades perform equal work, the grade classifications are artificial, and not a valid defense to a prima facie violation of the EPA. Miller v. Dep't of the Navy, EEOC Appeal No. 01943457 (December 8, 1995) (citations omitted). Although the Agency classified Complainant's position at the GS-12 level, the record supports Complainant's contention that her actual duties were comparable to those of the Comparative, who was at the GS-13 level. Moreover, we note the record reveals that before the removal of Complainant's classification duties in August 2014, the Contract Classifier's initial review indicated that Complainant's position should have been at the GS-13 level. Upon review of the record, we find that the Agency failed to carry its burden of establishing a valid affirmative defense to Complainant's proven prima facie violation of the EPA. Thus, we conclude Complainant has established a violation of the EPA and is entitled to the remedies set out in this decision and our Order herein. Title VII The Commission finds that because of our finding regarding the EPA violation and because we find that Complainant satisified the jurisdictional prerequisites of Title VII sex discrimination, the Agency also violated Title VII. See 29 C.F.R. § 1620.27; Miller, EEOC Appeal No. 01943457. Furthermore, we find the record supports an independent finding of intentional discrimination in violation of Title VII. We note Complainant also alleged that she was subjected to discrimination based on race, color, sex, and national origin when she was not promoted to the GS-13. In the present case, assuming arguendo that Complainant established a prima facie case of discrimination with regard to her protected bases, we find the Agency articulated legitimate, nondiscriminatory reasons for not promoting Complainant to the GS-13 level. Specifically, the Agency noted that Complainant was hired as a Human Resources Specialist position at the GS-9 level, which had full promotion potential to the GS-12 level. Thus, the Agency stated that having reached the top of her respective career ladder is a legitimate, nondiscriminatory reason for her not being non-competitively promoted further. In contrast, when the Comparative transferred from GSA to the Agency he was already at the GS-13 level. Upon review, we find Complainant failed to establish that the Agency's articulated reason for its actions was a pretext for discrimination. Next, we address Complainant's contention that the Agency subjected her to discrimination based on her race, color, sex, and national origin when it changed her promotion potential from a GS-13 to a GS-12. We find the Agency presented a legitimate, nondiscriminatory reason for its actions. The record reveals that when Complainant was hired as a GS-9 her full promotion potential was listed as GS-12. The promotion potential remained the same when Complainant was promoted to a GS-11. When S1 asked for Complainant to be promoted early to a GS-12, based on Complainant's veteran's status, she also asked for the full promotion potential to be changed to a GS-13. S1 states that the Director approved Complainant's early promotion to a GS-12; however, the Director denied the change in promotion potential due to a lack of funding. S1 explained that the Specialist who processed the paperwork in August 2012, was unaware the GS-13 full promotion potential had not been approved and processed the paperwork to include GS-13 promotion potential. S1 noted that the action was cancelled in January 2013. In addition, the Director stated that there had been problems within the Agency regarding the accuracy of SF50s. The Director stated based on her knowledge of the position at issue and the "habitual pattern of processing errors and corrections," she is "confident" that this is another example of the SF-50 reflecting full promotion potential to a GS-13 to be an error. The Director stated she did not know why it took from August 2012 to January 2013, to correct other than the fact that there has been a massive Department-wide effort to identify and correct personnel action errors in preparation for the Department migrating from the existing personnel/time accounting system to an integrated system for personnel and pay actions. Upon review, we find Complainant failed to show that the Agency's articulated reasons were a pretext for discrimination. Finally, we address Complainant's claim that she was subjected to retaliation when the Agency took away her duties in August 2014. We note that the Agency erroneously argues that Complainant was not subjected to materially adverse treatment when her duties were removed. The record reveals that the removal of Complainant's classification duties in August 2014, impacted the desk audit of her position and resulted in a finding that her position was properly classified at the GS-12 level. Thus, we find Complainant was subjected to a materially adverse action and was aggrieved by the removal of her duties in August 2014. Upon review, we find that the Agency articulated a legitimate, nondiscriminatory reason for removing Complainant's classification duties in August 2014. The Agency noted that management had decided to transfer a substantial portion of the office's work to contractors, including classification duties, prior to the audit determination of August 21, 2014. S3 noted that in the last two years, the Agency has outsourced many of their functions, so the need for HR Specialists to conduct traditional tasks had been reduced. We note that the record contains an August 6, 2014 Memorandum to the employees assigned to the OHR, NCR. The subject of the Memorandum is Notice of Potential Reduction in Force (RIF). In addition, the record contains electronic mail messages between Complainant and S1 from August 21, 2014, through August 26, 2014. In an electronic mail message dated August 21, 2014, Complainant states she was told that morning that she will be removed from classification and asks S1 if this is when everyone in NCR changes. In response S1 told her they would like to free Complainant up now from classification to help with the CURE project. Complainant replied on August 24, 2014, stating she does not want to be the only one changing roles and requested to continue her regular duties (mostly classification) until everyone has their duties redefined. S1 said this was not possible because everyone would transition into new roles as work and/or accounts are moved to other resources (contractors or annuitants) using a phased approach. S1 explained they are now in the process of moving classification over to the annuitants so that they can free people to focus on H2R (Hire-to-Retire). In an attempt to prove pretext, Complainant contends that the reorganization did not happen until November 2014. Complainant also states that the same duties were not removed from other employees in the same position. Specifically, she states the Comparative continued to perform classification duties. In her affidavit, S1 stated that the Comparative is no longer a classifier and he has been reassigned to another supervisor. Additionally, S3 also stated that many employees had their job duties reassigned as a result of the reorganization. Upon review we find Complainant failed to show that the Agency's legitimate, nondiscriminatory reason for removing her classification duties in August 2014, was a pretext for discrimination. We note that Complainant's claim that no other employee's duties were so altered and that the Comparative's classification duties were not removed is contradicted by testimony of S1 and S3. Moreover, we find Complainant's claim that her duties were transitioned before others also does not establish a pretext in light of the phased nature of the reorganization. We find Complainant failed to prove that the Agency's removal of her duties in August 2014, was done in retaliation for protected EEO activity. Remedies We note that claims of wage discrimination based on sex can be brought under the EPA or can be pursued directly under Title VII. The claims are not mutually exclusive and both avenues of relief can be pursued simultaneously. See 29 C.F.R. §1620.27. An individual may recover under both the EPA and Title VII for the same period of time so long as the individual does not receive duplicate relief for the same wrong. Relief is computed to be the highest benefit either statute would provide. See Telford v. Department of the Army, EEOC Appeal No. 01973892 (November 2, 1999). We note that Complainant has requested the remedies of back pay, punitive damages, a position description with the duties provided in the desk audit, promotion to a GS-13 effective July 14, 2013, and to remain in the position she occupied at the time of her complaint with the duties defined in the desk audit. As Complainant did not succeed on her non-promotion claim, she is not entitled to promotion to a GS-13. We note that punitive damages are not available to federal employees. See Jones v. Department of Health and Human Services, EEOC Request No. 05940377 (January 23, 1995) (citing Graham v. U.S. Postal Service, EEOC Request No. 05940132 (May 19, 1994)). We note that Complainant has not requested compensatory damages. We also note that as Complainant is no longer working at the Agency, her relief is limited. An employer who violates the EPA must remedy that violation not only by awarding the affected employee the difference between the salary she received and the salary she should have received, retroactive to the date the violation began, but also by awarding the employee an additional equal amount as liquidated damages. See 29 U.S.C. § 216(b); Miller, EEOC Appeal No. 01943457. Under 29 U.S.C. § 260, "if the employer shows to the satisfaction of the court that the act or omission giving rise to such an action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation ... the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216." Here, our Order for relief for the violation of the EPA includes an award of liquidated damages, since the Agency has failed to argue, or show, that this violation was in good faith or that it had reasonable grounds for believing its action was not a violation of the EPA. See 29 U.S.C §§216(b), 260. While we find Complainant is entitled to receive back pay, we note that the back pay continues until the date the Agency removed Complainant's classification duties. On remand, the Agency shall determine the date Complainant's classification duties were removed. The record reveals Complainant was not represented by an attorney and thus, we find she is not entitled to attorney's fees. CONCLUSION Accordingly, the Agency's finding of no discrimination regarding Complainant's claim of sex-based pay discrimination under the EPA and Title VII is REVERSED. The claim that Complainant was denied the accommodation of a lactation room is REVERSED and REMANDED to the Agency for further processing in accordance with this decision and the Order listed herein. The Agency's finding of no discrimination on the remaining claims is AFFIRMED. ORDER 1. The Agency is ordered to process Complainant's claim that she was denied the reasonable accommodation of a lactation room in accordance with 29 C.F.R. §1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced herein. 2. Within 60 days of the date this decision becomes final, the Agency shall pay Complainant back pay, with interest, for the difference between Complainant's salary and that of the Comparative retroactive to July 15, 2013 (which is one year after her promotion to a GS-12), and other appropriate benefits that Complainant would have been entitled to but for the discrimination. The back pay shall be calculated from July 15, 2013, until the date Complainant's classifications duties were removed in August 2014. The Agency is further directed to pay Complainant an additional amount of liquidated damages (equal to the back pay award) for its violation of the EPA. 3. Within 180 days of the date this decision becomes final, the Agency shall provide training to the Agency officials responsible for the alleged discrimination with regard to the prohibitions against sex discrimination under the Equal Pay Act. 4. Within 60 days of the date this decision becomes final, the Agency shall consider taking disciplinary action against the Agency officials responsible for discriminating against Complainant. The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose discipline. The Agency is further directed to submit a report of compliance, as provided in the statement herein entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its National Capital Region (NCR) facility in Cleveland, Ohio, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 June 3, 2016 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 The Agency noted that in her affidavit Complainant also claimed discrimination based on sex because she was pregnant during some of the events in which she alleged discriminatory treatment. The Agency stated its analysis would address this where appropriate 3 The Agency noted that Complainant clarified in her affidavit that her duties were removed in August 2014. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152308 2 0120152308