U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Berry K.,1 Complainant, v. Robert L. Wilkie, Jr., Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120180967 Hearing No. 430-2016-00169X Agency No. 2004-0652-2015102922 DECISION On January 19, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's December 21, 2017, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Equal Pay Act (EPA) of 1963, as amended, 29 U.S.C. § 206(d) et seq. For the following reasons, the Commission AFFIRMS the Agency's final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Physician Assistant, VN-0603 Chief Grade, Step 10, at Agency's Hunter Holmes McGuire Veterans Administration Medical Center in Richmond, Virginia (Richmond VAMC). On June 8, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and in reprisal for prior protected EEO activity when: On April 7 and 15, 2015, he became aware that Nurse Practitioners received a higher rate of pay than Physician Assistants. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The Agency filed a motion for summary judgment (Motion) on January 12, 2017, and served the Motion to Complainant's union representative and Complainant. On January 13, 2017, Complainant's current attorney entered an appearance in the case. On December 6, 2017, Complainant requested an extension of time to respond to the Agency's Motion. On December 11, 2017, the AJ noted that since Complainant and the union representative were properly served, she was denying Complainant's Motion for an Extension to respond to the Motion. The AJ adopted the Agency's statement of undisputed facts and issued a decision without a hearing finding no discrimination on December 18, 2017. The Agency subsequently issued a final order on December 21, 2017. The Agency's final order fully implemented the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. On appeal, Complainant states that there was no basis for the AJ to adopt the Agency's descriptions of facts without analysis. Complainant also claims the AJ erred in failing to consider his request to file a response to the Agency's Motion. The Agency argues the AJ's decision is sound and well-reasoned, and that Complainant is unable to point out any flaw in the AJ's analysis. The Agency also states that Complainant's claim that the AJ erred and abused her discretion by not allowing him to file a response to the Agency's motion for a decision without a hearing - eleven months after the Agency filed its Motion - is also baseless. 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 (EEO MD-110), at Chap. 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 address Complainant's contention that the AJ erred by not allowing him to respond to the Agency's motion for summary judgment (Motion). The Agency's Motion was filed on January 12, 2017. The AJ found that the Agency properly served the Motion to Complainant and his then designated union representative. On January 13, 2017, Complainant's current attorney entered an appearance in the case. The record reveals that Complainant did not respond to the Agency's Motion within the applicable time frame. On December 6, 2017, Complainant requested an extension of time to respond to the Agency's Motion. On December 11, 2017, the AJ noted that since Complainant and his union representative were properly served, she was denying Complainant's Motion for an Extension to respond to the Motion. EEOC regulations and Commission precedent provide administrative judges with broad discretion in matters relating to the conduct of a hearing. See 29 C.F.R. § 1614.109(e). Complainant failed to show the AJ abused her discretion in denying his request for an Extension to respond to the Motion. Upon review of the record, we find that the AJ properly found that the present complaint was suitable for summary judgment. We note Complainant does not challenge the definition of his complaint on appeal. We find that the record is adequately developed and there are no disputes of material fact. First, we address Complainant's contention that the Agency violated the EPA. The United States Supreme Court articulated the requirements for establishing a prima facie case of discrimination under the EPA in Corning Glass Works v. Brennan. 417 U.S. 188 (1974). To establish a prima facie case of a violation under the EPA, a complainant must show that she or he received less pay than an individual of the opposite sex for equal work, requiring equal skill, effort, and responsibility, under similar working conditions within the same establishment. Sheppard v. EEOC, EEOC Appeal No. 01A02919 (September 12, 2000), req. for reconsideration denied, EEOC Request No. 05A10076 (August 12, 2003). Once a complainant has met this burden, an employer may avoid liability only by showing that the difference in pay is justified under one of the four affirmative defenses set forth in the EPA: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production of work (also referred to as an incentive or piecework system); or, (4) a differential based on any factor other than sex. Id. The EPA permits a compensation differential based on a factor other than sex. In order to establish this defense, an Agency must establish that a gender-neutral factor, applied, consistently, in fact explains the compensation disparity. EEOC Compliance Manual, Chapter 10: Compensation Discrimination, No. 915.003, at 10-IV (December 5, 2000). The Agency must also show that the factor is related to job requirements or otherwise is beneficial to the Agency's business and used reasonably in light of the Agency's stated business purpose as well as its other practices. Id.; Complainant v. Dep't of Homeland Security, EEOC Appeal No. 0720040139, req. for recons. den., 0520070616 (July 25, 2007). We find the Agency met this affirmative defense by showing that the alleged pay disparity was based on a "factor other than sex." The record reveals that the Agency is required by statute and regulations to maintain separate pay scales for Physician Assistants and Nurse Practitioners. See Complainant v. Dep't. of Veterans Affairs, EEOC Appeal No. 0120061353 (March 15, 2007) (finding the Agency was mandated by statute as to the applicable pay scales for nurse practitioners and physician assistants, i.e., Congress mandated that nurses have a separate pay scale). The Richmond VAMC uses salary surveys of private sector pay to determine pay scales for Nurse Practitioners and Physician Assistants. Based on a salary survey, a pay chart would be developed, approved by the facility Director, and forwarded to the VA Central Office for authorization and implementation. The Richmond VAMC Director explained that the Medical Center had been having great difficulty attracting and hiring qualified Nurse Practitioners. The Director stated that the Medical Center had recently conducted a salary survey and increased Nurse Practitioner pay in order to achieve parity with private sector employees and to meet a need for Nurse Practitioners at the Medical Center. The Richmond VAMC did not have similar difficulty in attracting, hiring, or retaining Physician Assistants and did not have unfilled Physician Assistant vacancies. This gender-neutral explanation has not been rebutted by Complainant and suffices to convince us that the Agency did not violate the EPA on these facts. Next, we address Complainant's claims that he was subjected to disparate treatment in reprisal for his prior protected EEO activity. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). In this case, we find that there is no evidence that Complainant's prior EEO activity played any part in the setting of his salary. As described earlier in this decision, the Medical Center Director authorized separate pay scales for Nurse Practitioners and Physician Assistants based on federal statutes, regulations, Agency policies, and salary survey data. Further, we find that nothing in the evidence presented shows that the Agency's actions were a pretext for discrimination. CONCLUSION Accordingly, the Agency's final order finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations May 25, 2018 __________________ 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 0120180967 6 0120180967