Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

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activities. As a resolution to her grievance, Lange requested: (1) back pay at the GS29 level, (2) compensation for leave taken due to her emotional distress, and (3) medical expenses. A review of Lange's December 20t~ grievance indicates she elected to proceed with the negotiated grievance procedure. By making this election, Lange forfeited her fight to pursue ar~ EEO claim. Having found that Lange elected to proceed under the negotiated grievance procedure, the Court turns to the issue of whether Lange properly exhausted her administrative remedies before filing suit. "It is well-settled that exhaustion of administrative remedies is a jurisdictional prerequisite to a private civil action under Title VII." Martell ~. Norton, 242 F.~ Supp.2d 652, 657 (N.D. 2003). The agreement negotiated between Lange's union andthe Forest Service contained a three-step grievance procedure. The first step requires the filing of a formal grievance with the immediate supervisor. If the grievance is denied at the first level, the employee can proceed to the second step which entails forwarding the grievance to the next level supervisor. Finally, if the grievance is denied at the second step, the employee can proceed to the third step and forward. her grievance to the Regional Forester. The agreement further provides that if the matter is not resolved at the third step it may be referred to arbitration. In this case, L~ge followed the first stage of the grievance procedure by filing her December 20t~ grievance with her supervisor, Richard Judge. Mx. Judge denied Lange's grievance on January 18, 2001, and advised Lange that she had the right to file a step two grievance with the Forest Supervisor. Lange failed to appeal the denial and take her grievance to the second level. Thus, Lange failed to exhaust her administrative remedies under the negotiated grievance procedure.

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Is LANGE'S FAILURE TO EXHAUST HER ADMINISTRATIVE REMEDIES EXCUSABLE?

Lange argues that even if she failed to exhaust her administrative remedies, the Court should excuse her failure on the grounds that the Forest Service should be equitably estopped from asserting her failure to exhaust. Lange relies upon management's alleged unfulfilled obligation to supply a workload analysis and its contradictory position (removing Lange's COR duties when COR opportunities were available). The doctr~e of equitable estoppel focuses on actions taken by a defendant inpreventing a plaintiff from filing suit. For the doct~e of equitable estoppel to ~pply in this.instance, the following elements must be satisfied: (1) the government must have known the facts, (2) the government must have intended that its conduct will be acted on, (3) Lange must have been ignor.~t of the true facts, (4) Lange must have detrimentally relied upon the government's conduct, and (5) the government must have engaged in "affirmative conduct going beyond mere negligence," and (6) the public interest must not suffer undue damage as a result of the application of this doctrine. Lehman ~. United States, 154 F.3d 1010, 1016-17 (9t~ Cir. 1998). Under the circumstances of this case, the Court deems it inappropriate to invoke the doctrine of equitable eStoppel. Even taking all of the allegations made by Lange as true, they do not rise to the level of affirmative misconduct by the government. Furthermore, given that Lange was clearly advised that her COR duties would be removed, it is hard for the Court to see what exactly Lange relied upon to her detriment. Lange's failure to exhaust her administrative remedies is not excusable. Therefore, summary judgment in favor of the government is proper regarding Lange's claims of improper denial of promotion and of reprisal based on union

activity.
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DID LANGE EXHAUST HER ADMINISTRATIVE REMEDIES REGARDING HER RETALIATION CLAIM? "

The government also seeks summary judgment on Lange's retaIiation claim, again under the theory that she failed to exhaust her administrative remedies. Lange's retaliation claim is based upon comments made by her supervisor, Jim Mickelson~ in February of 2000 regarding Lange's participation in union activities. The conduct and comments alleged to have been made by Mickelson were specifically raised in Lange's September 29, 2000 grievance. Furthermore, in Lange's December 20, 2000 grievance, she makes reference to her belief that her ~union activities impacted management's decision to r~move her COR duties, and requested as relief, among other things, that she never be supervised by either Mr. Judge or Mr. Mickelson. As mentioned above, Lange failed to pursue either of her grievances beyond the first leve!. Thus, ¯under the same analysis as enumerated above, the Court finds that Lange failed to exhaust her administrative remedies under the negotiated grievance process regarding her retaliation claim. This failure wi!l not be excused, and summary judgment in favor of the government is therefore proper.
IV. DID LANGE EXHAUST HER ADMINISTRATIVE REMEDIES REGARDING HER lCIOSTB.,E
WORK ENVIR0..NMENT CLAIM?

The governmet~t seeks summary judgment on Lange~s hostile work environment claim on the basis that she completely failed to raise this issue in her EEO complaint. Lange responds by contending that this claim is "li_ke or reasonably related" to the allegatious made in her EEO complaint. A review of her EEO complaint proves otherwise. Lange, for her EEO complaint, defined the issue as "whether [she] was subjected to discrimination based on sex .(female), reprisal, and in violation of the Equal Pay Act, when on April 27, 2001, the agency failed to reclassify her position and promote her to the GS-9 level." -9-

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the issue as framed by Lange .does not address or even implicate a hostile work environment claim. As a result, the USDA's Office of Civil Rights, in making its final agency decision, did not address any hostile workplace environment issues. Once again, Lange has failed to exhaust her adm~strative remedies, resulting in summary judgment in favor of the government on this issue.
V. IS LANGE'S EQUAL PAY ACT CLAIM ]BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS?

The statute of limitations for Lange's Equal Pay Act claim is two years tmless the violation is deemed to be willful, in which case it is three years. See 29 U.S.. § 255, 29 C.F.R. § !614.408. Lange is seeking back pay for work which she performed as early as 1998. As discussed above, her COR duties were removed as of November 2000. Her complaint was filed On July 24, 2003. Lange responds by arguing the continuing violations doctrine applies in Equal Pay cases, meaning that an action will not be time-barred so long as one forbidden act falls within the limitations period. See, e.g. Gandy v. Sullivan County, 24 F.3d 861,864 (6t~ Cir. 1994); Cherrey v. Thompson Steel Co.,Jnc., 805 F. Supp. 1257, 1261 (D. Md. 1992) (sound equitable reasons exist for the tolling of'~the limitations period while awaiting EEO determination). Lange is correct in her position. The continuing violations doctrine and the fact that Lange filed an EEO " complaint in 2001 both provide the Court with a basis to toil the statute of limitations. Accordingly, summary judgment is not proper regarding this issue. The government contends in the alternative that even ifLange's claim is not time barred, her damages should be limited to the loss of pay between July 24, 2000 and November-5, 2000.

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Yhe Court will address the issue of the allowable computation of damages prior to trial. CONCLUSION For the reasons as enumerated above, the government's motion for summary judgment (Docket No. 21) is GRANTED as to Lange's discrimination claims (Counts I and 1I) mad DENIED as to all other claims. The Clerk of Court~ed to notify the parties of the making of this Order.

u. s. D~SralCr st~az

CERTIFICATE OBFyMAILi .~DATE: ~'/~/~
I h~i~by dertify that a copy

",

of this order was mailed to:

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~Memorandum
Subject:
Date:

Teresa Kim Lange v. United States Cause No. CV 03-61-BU-RFC
To:

January 26, 2006 2003V00191 TJC/lat
From:

Donna Steffensen Supervisory Human Resource Specialist U.S. Forest Service P.O. Box 7669 Missoula, MT 59807

Timothy J. Cavan Assistant U. S. Attorney P.O. Box 1478 Billings, MT 59103 Telephone: (406) 247-4674 Fax: (406) 657-6989

Enclosed please find copies of the following: ORDER TRANSFERRING CASE TO THE UNITED STATES COURT OF FEDERAL CLAIMS, filed January 18, 2006. Enclosures Mark Lodine, Esq. Office of General Counsel Department of Agriculture P.O. Box 7669 Missoula, MT 59807 Telephone: (406) 329-3066 Fax: (406) 329-3064

Case 1:06-cv-00306-MCW Document 21-5 Filed 01/18/2006 Page 1 ot7 of 18 Filed 03/15/2007 Page z Case 2:03-cv-00061-RFC Document 62

.RECEIVED
U.S. A-f-rORNf~Y'S OFFIGE BILLINGS, MONTANA

IN THE UNITED STATES DISTRICT CO~ __._._ FOR TIlE DISTRICT OF MONTANA- -- 9 EP~ 77 0 L t ~:~ K BUTTE DMSION

) ) Plaintiff, ) ) VS. ) ) ANN VI. VENElVIAN, SECRETARY, ) L~ITED STATES DEPARTMENT OF ) AGRICULTURE, FOREST SERVICE, ) ) Defendants. ) )
TERESA KIM LANGE,

CV-03-61-BU-RFC

ORDER TRANSFERRING CASE TO THE UNITED STATES COURT OF FEDERAL CLAIMS

On July 24, 2003 Plaintiff Teresa Kim Lunge filed an employment discrimination suit against her employer, the United States Forest Service ("USFS'). Defendants were subsequently granted summary judgment on Counts I and II, but denied summaryjudgrnent on Count [II. On December 12, 2005, this Court granted Defendants' Motion for Leave to File a Motion to Dismiss Beyond the.Court's Motion Deadline. Presently before the Courtis DefendantS' Motion to Dismiss or Transfer to the Federal Court of Claims.

The only remaining count of Plaintiff's Complaint is Count [I.!, which is based on the Equal Pay Act. The "Big" Tucker Act and the "Little" Tucker Act contain jurisdictional rules for suits against the United States brought under federal statutes. The "Little" Tucker Act provides concurrent jurisdiction to the United States Court of Federal Claims and the United States District Court over claims founded on federal statutes that do not exceed $10,000. 28 U.S.C. § 1346(a)(2). The "Big" Tucker Act grants the United States Court of Federal Claims jurisdiction

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over "any claim against the United States founded" upon federal law. 28 U.S.C. § t491(a)(1). Federal Courts have repeatedly construed these statutes as granting the United States Court of Claims exclusive jurisdiction over Equal Pay Act claims exceeding $I0,000. E.g., Schrader v. Tomlinson, 311 F.Supp.2d 2 l, 26 (D. D.C. 2004); Barnes v. Levitt, 118 F,3d 404, 410 (Sth Cir. 1997); and Huddleston v. Donovan, 524 F.Supp. 179, 180 (N.D. Ill. 1981). Plaintiff apparently does not dispute the fact that her claim exceeds $10,(3t30, as she has requested that her Equal Pay Act claim be transferred to the Court of Federal Claims rather than having i~ dismissed. Plaintiff's Response to Defendants'Motion to D~snHss or Transfer, page 3 (September 16, 2005). Accordingly, IT IS HEREBY ORDERED that Defendants' Motion to Transfer to the Federal Court of Claims (Doc. #59) is GRANTED. This case is transferred to the United States Court of Federal Claims pursuant to 28 U.S.C. § 1631. The Clerk is directe~.~ noti_fy the parties of the making of this Order. DATED ttxis /]~ day of January, 2006.

/,

U.S. DISTRICT JUDGE

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USDA
United Stat~s Department of Agriculture
Office of the for Civil Rights

United States Department of Agriculture Office of Civil Rights

Tecesa I~L
Compiai~ant,

Office of Civg Rights 1400 Independence Avenue SW
Washington, DC 2_02~0

Ann M. Veneman, ' Secretary, . v, Departalent of Agriculture, ': " Agency. ..i

) ) ) )
Introduction

Final Agency Decision

~ a request dated July 19, 2002, the Complainant requested that lhe Agency issue a Final Agency Decisi6n (FAD) on the re~ord~.. ~t~.,accordance,,~cith.othe-~ .~uat .-~mployment Opportunity Comm2ssion (EEOC) Regulations at 29 C.F.IL § 1614.110(b), this is the final decision offlae Department of ~gri~ .I~r~.~ASEL. &),on.th~s,-~emptai~t. Issue Presented Tke: issue~sented herein is whether the Agency subjected, the CompI~nar~t to ....... . - i dis.-c.riminati°r~based on sex (female), reprisal, and in violation of the EquaI Pay Act (EF4) of 1962, whe~i~ allegedly 0n April 27, 2001, she was told that she would not be promoted to the GS-9 leve! because she d~d not perform Contract Officer I~.epresentatNe (COR) duties year round. Procedura] Background The .re'cord reflects that the Complainant sought equal emplo3maent opporamity (EEO) .. counselhag on May 8, 20.0.,.1. ~O courtseting was x~ondueted~-.and, theComplainant was ~ssued a Notice of Ri~ht to file a forma! complaint on 2une !5, 2001. The Complai~aat filed a forma! complaint on July 2, 2001. The Agency acknowledged receipt of tEe formal complain~ on July !6, 2001.

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2 On October 30, 2001, the Agency notified the Complainant that it was accept-in ; all but one (1) of flee issues raised in her formal complaint filed July 2, 2001. SpteifiCiLlly~--the Agency dismissed the issue arising from the Complainant's allegation that she was not promoted pursuant to a classification decision made on October 3,2000, detel~iiiing teat she had failed to initiate timely contact with the EEO Counselor as ~:equired by 29 C.F.R. §!614.105 (a). In a letter dated November 9, 2001, the Complainant, through her representative, conveyed her disagreement with the dismissal. In a letter dated November 30, 200I, the Agency notified fl~e Complainant's representative that it had dismissed the issue in error, was accepting the issue, and would refer it ..for investigation. The investigation on both ~tc~epted issues was completed on Janukry 18, 2002. The Record of Investigation (KOI) was forwarded to the Complainant. The Complainant requested that the Agencyissue its FAD on the record. Therefore, the Agency is issuing the instant FAD.

Factual Background The record reflects that at all relevant times, the Complainant (female,prior EEO activity) was an Engine~.~_ng Tecb..~.ician, GS-802-7, with the Forest Service, Region i,.Bev~e~:headDeerlodge, located in Butte, Montana. The Complai~ant named the Forest.Supervisor (female, no prior EEO activity) a~the discriminating Agency official.
Complainant's Contentions

The Complainant alleged that in addition to her duties as an Eng~aeering ~echni£iar~ she had been pe~rming the duties ofa COR until October 19, 2000, wh~i~:;~:~:notified ofmanagement.'s decision to redistribme the COR!ER duties. She said that management made the de~'ision as a result of the Agency personnel officer's determination that she whs working at the Engineering Technician, GS-9, level when she performed COPJER duties. She stated further that the Personnel Officer advised Agency management thatit should either reclassify the Complainant's position to that ofa GS-9, Engineering Technician, or redistribute the COR!ER duties to a GS-9, Engineering Technician... ~he.~tated.that on October 19, 2000, management notified her that it was redistributing the COP,~R duties to a GSi9~ Engineering Technician. The Complainant argued that.~.2k.g~ncy.ale~i, sion:a,~t to reclassify herposition to the GS-9 level constitutes illegal discrimination~ She contended flaat the Agency has non-competitively promoted male employees .to higher-~aded positions.

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3 Mmlagemcnt's Contentions

The Assistant Forest Engineer (AFE) (male, no, prior EEO activity), GS-810-12, denied discrkminating a~.x!ae,,,.~mpl,a'mma~,-~,-..*I~la¢-.~g:'Tecmmte~"-~at-in'-iate-i99-9, he temporarily promoted the_ Complainant from the GS-802=7 to GS-802'9 Maen she was as~igned the COR/ER duties of a female GS-802-9, her first-level supervisor, who was absent on a detail assignment.
He further stated that that temp0tary appointment was not to exceed November z~I 2000. He tes tiffed that when the re:mate GS-802-9 returned to the office, she ~:eassumed her COP,. duties and because the workload levels aud funding cbncerns would'not suppgrt t-~v6 (2) GS-802-gs~ the Complai~..ant's temporary cop,. duties were redistributed to a GS-802-9 Engineering Technician.

The Complainant's fourth-line supervisor, Forest Supervisor, GS-340-15 (female, no prior EEO activity) denied fl~at the Agency discriminated against her. She stated that the Agency's decision to redistrlhute the COR!ER duties rather than upgrade the Complainant's position.was based on budgetary concerns. Complainant's Rcbu~l. : -.:

In her rebutta!, the Complainaht argaedthat management's given reaso~ for the decision not to upgade her position were pretexmal. She contended that a workload analysis was never completed, so management's given reason for its refusa! to. promote her noncompetitively was without substance: She also claimed that the,Agency's budget was not at issue, sing.9 the. Agency:~a_s congide_ring filling a Professional Enginee~ position in the 810 Series..' ........ A~alys~s and F~md[ngs

In ithe absence ~f direct..ercideace of discrimination, m prevail on a claim of unlawful discrimination under Title VII, a complainant.must sa_tis_fy, the_flxee(3) part.evidentiary . scheme in McDorm61D61ifflas Corporation v. Green, 411 U.S. 792 (1973). A complainant must initially establish, by preponderant ~vide_n.~.e., g_~.facie.case The orima facie elemdii~~"a~e determined by the circumstances of the case and the bases of discrimination alleged. International Brotherhood of Teamsters v. United States~ 431 U.S. 324, 3 58 (1977). The Agency must then articulate legitimate nondiscriminatory reasons for its actions. Finally, the burden returns to the Complainant to prove by a preponderance of evidence, that the Agency's ostensibly legitimate nondiscriminatory reasons are pretextual_ Coooer v. Federa! Reserve Bank of Governors v. Aikem~. 460 U.S. 7! 1. 715-6 (!983); Texas Det~artment of Communi_W Affairs v. Burdine, 450 U.S. 248,253-6 it981).

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4

At all times, the ultimate burden of persuasion remains with the Complainant. Board of Trustees 9f Keene Cgll~ge. v~..S,.ween.'¢~o~C39..U,S~..~24~,~'25'N.£°'('1'978):' ~~This"butden~was reaffirmed and clarified in St. MarWs Houor_Center v, Hicks, 509 U.S. 502 (1973). Iu Hicks, the Court held ~at ~.ord~toimpo.~4~a~apon~-empl'oyer'for'flisefiniinatory .... employment practices there must be an ultimate finding of unlawful discrimination regardless 0f whether or not the employer's explanation for its action was believable. Toestablish a ~a facie ease .based oa reprisal, .a complainant must show that:-(1) he!she engaged in prior protected actiyity; (2) the Agency official was aware., of the protected activity, (3) he/she was sub~ .t~. ~5ally disadvantaged by the adverse acfigfi; and (4) there is a causal link between the prbtected:~ictivity and adverde acfiom Hodhstadt v; Worce~er Foundation f9r Experimental Biolo_~r, Iuc., 425 F. Supp. 3~8, 324 (D. Mass), afPd 545 F.2d 222 (~ st Cir. 1976); Manoharan v. Columb~a.U~.v.e..rsiW College of Physic.in.us and Sur.~.eons, 842 F.2d 590, 593 (2~s Cir. 1980). In addition, in Gunther v. County o~ Washing.mn~ 623 F_2d 1303, 1316 (ga~ Cir. 1979)~ afffd 452 U.S. !61 (1981), ~e cou~--theld that essential to the link between protected ac~vity and adverse action is showing that the official(s) took the action a~ issue because of ¢omplaffxant's prior protected activity and sought to deter the complainant or others. EEOC Compliance Manual on Retaliation, No. 9i5:003 (May 20, !998), pp. 8-16.

Here, we are not persuaded that ma~agement, s a~tions w..emmotiv.ated b~xlisc~i~ad~, orion .for any reason.
Agency Merit Findings

Comt~lainant's Tkle VII-related Claims The Compihinant has failed to establish a prima facie case of reprisal. There is no indication that the Complainant had previously engaged in protected EEO activity prior to the fiiing of floe instant complaint We reach this decision based on the Complainant's a_.f-i~davit ~ which she stated '~ believe reprisaI is a factor becauseof my participation and ffi~eraction with the lmion concerning ~is..q0 .m. plai~_ t artd.oflmr.issueL:'- She-describes a .meethag tha~ she had v~{~Ngeney management in which she raised ~e issue about employees performing C0~R duties ouNid.e of ~.~ix_gmd~.lew.! positions:.-It"atrpears tlaat this meeting took place after the Agency notified her of its decision not to upgrade her position, and represented an informaI attempt to mediate the issue. However, the Complainant makes clear that she was rais~g this issue in her role as a union representative and as part of a grievance proceeding, and not as any proceeding related te the assertion of Nvi! rights. An informal mediation session, without more, does not convert the informal gievance ham protected EEO acti~ty: Mor.eover, nothing in the ,:ecord indicates that any issue of alleged disparity in treatment between males and females was raised ac the session. Therefore, the Compiainant has failed to satisfy element one of a ~rima facie case ofreprisak Fur'daermore, the Complainant does not a!lege, nor is there

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5

anything in the record to support a finding that Agency raanagemet~t viewed her a~tivity as EEO-related activity. Therefore, the Complainant has failed to satisfy Even i_f we could find that the Compla~naut .satisfied element th~ (3), she has not presented sufficient evidence that will penuit us to infer a link betwee~":~he 'a~rions complained of and any actions that could reasonably be construed as EEO-related activities. We fred no reprisal motive in Agency management's actions here. There is abso!utely no evidence t[lat would support a finding that the Agency engaged in the cited actions for the purpose of deterring the Complainaut or her co-workers from voicing their concerns about alleged pay in~quifies between male and female 4mployees Or from e×ercisiag their cirri rights, in tlie workplace. Accordin~Iy, we find that the Complainant has failed to make a case 4~'reprisal discrimination We also fund that the CorHplainant has failed to sadsfythe elements ofa prirn~i-~acie case of sex discrimination based on disparate treatment. In her affidavit, the Complainant identifies two (2) male employees who she claimed were promoted nou~compet~fively to higher grade levels. According to the Complainaut, in one instance, a male applied for a position advertised as at GS-7/9, Eugineer~g Teckuiciaa level, enteredat the GS-7 Ievel, and..was non-compe~ively promoted to a ~S-9 level as a. result o~ obtaining his COR certification..In the other instance, a male applied for aposition as aGS-5/7, Engineering Tecb.uician, edtered at the GS-5 level, and was subsequently promoted n0n-competitively to GS-7 level through an accretion of duties. The issue here is whetherNimale..=~g~l.~¥ee, who was similarly situated to the female Complainant, was treated differently with regard to the Agency's decision to redistribute CORER duties rather than reclassify a GS-7, Engineering Teckniciaa, position to that of a ~S-9. We find no evidence of disparate treatment. The Complainant has presented no evidence that.suggests thatamale emploYee was treated .,differently inthis regard. I_u other words, the..Complainant has made ¯ showing thff~'the male GS-5, Engineering Tectmician, was promoted non-competitively to the GS-7 le~e! based on hisassumption 0fCOR~R duties. Similarly, the. Complainant tins not shown that the GS-9 male Engineering Techniciar~ attained that grade level based on kis assumption of COR duties. Rather., she acknow!edged that he attained_his GS-9 level - as a result of satisfying an advertised condition of employment under wkich he could be ram-competitively promoted to a GS-9 if he obtained COR certificaf!.ort,.I~,~0n~ast~).here ¯ is n~,'evidence that the Complainant accepted her GS-7 Ievel position under the same te ~_n~_ and conditions. Even if the Complainant had successfully established a prima facie case of reprisal or sex discrimination, considering the evidence herein, we find that the Agency h~ articulated legitimate nondiscriminatory reasons for its actions. Responding managers explained that Agency management made the decision no~ to upgade the CompIainmut's position based on budgetary concerns and workload assessments. The fact that the Agency may have been considering posting a VaCancy for a professional engineer position or chose no~ to conduct

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a fornlal workload analysis before deciding not to reclassify does not support a fin~g that the Agency harbored a pretext motive. The weigb.t of the evidet~ce does not demonstrate that the Agency's proffered reasons are pretext for illegal discrimination. Hence, no finding of reprisal or sex discrimination.concerning tke Agency's refusal to reclassify is warranted_ ...... - . Comvlainant'sEPA Based Claim .. ...... Regarding the Complainant'sEPA based Claim, the EPA of 1963, as am.elided, 29 U.S.C. 206 (d) prohibits Sex-based':.Wage discrimination between employees .by paying wages to employees of one gender at a rate less than the rate 15aid to employees of the opposite gender for equal work onj6bs the performance of which requires ~:lual skill, effo~ and responsibility, .and wllich are performed under similar working'conditions. The EPA was enacted to remedy the "serious and endemic" problem of sex-based wage discrimination. ¯ Coming G.lass-Works v. B.rerman~ 4!7 U.S. !88, !95 (1974).. It stands for the straighffo~v~d proposition that :'employees doing equal work should be paid equal wages, regardiess.of sex." Goodrich v, International Brotherhood of E1..ectrical Workers., 815 F.2d 1519;. 1523..(D.C._.Cir:_.!987), citing H.R..Rep. No. 309, 88th Cong_, 1st Seas. 2 (1963), U.S. :Code Cong.-&.Admin- News 1963, pp. 687, 688. The ~0ncept of "equal pay.for equal work" is not to be confused with, .the~onc~pt of "comparable worth." The E~ does not.requks s~-neu~aI compensation based on the ~Nisic wo~ of a job ~o..~ ¢Nployer (e.g., ~ng to comp~ ~e wo~ of a s ecreta~ to ~hat of a track ~ver). Ths.te~ "employer" ~cIudes the Federal Gove~ent. Id~ at 203(d), (e)(2), ~gd:.(~)(!-978). The_United States Supre~ Cou~ ~culated ~e r~ulr~men~;,.~~}:~.~)l~g.a prima facie case of discfim~ation ~der the EPA. ~ com~8 Gl:ass Works, 412 U.S. at .195. A complaint has ~e initiN b~den of esmblisNng~ prima Ncie ~se underSe EPA. M order to establish a prima facie c~e, ~e co~plmu~t must show flint hWshe: (I) receiv~~~ a co~mployee o~ ~ ?~!osely raated S~ ~eq muc~ Nike. SNI1 usually iuvoN~ fa,~.s~eh~'~~ce, ~aining, education, ~d abili~. Effo~ ~ually refers to ~e ~omnt efphysicN or men~ exe~ion required te peffo~ the job. Responsibility ~uNIy'~ve~-~ke'de~ee 0~~ acco~mbili~ require~ includ~g the impo~ce of ~e job obligation.

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A complainant need not show intent to discriminate in proving a p_fi_ma facie violation of the EPA, Brewster v. Barnes, 788 F.2d 985,993, n. 13 (4th Cir. 1986); .Maxw~I1 qi~Ci~ ~ 803 F.2d 444, 446 (gth Cir. 1986); Parlays v. Sang .amen-Case C.onsortium, 769 F.2d 1251, 1260, n. 5 (7th Cir. 1985); Sinclair v. Automobile Club of Okld'horaa~ Inq., 733 F.2d 726, 729 (10th Cir. 1984); EEOC CompI. Manual Section 704.2. Courts frequently do not break their EPA analyses down into separate comparisons of skill, effo~-and responsibiiity, B. Schlei & P. Crcossman, E~Pl0Yment Discfimina~on Law, p. 449 (2d eeL). The pYimary approach in de..tg~ing thg equality of jobs is an analysis of overall job content. Ang¢lo v. Bacharach.Ins.trq.men~, Co., 555 F.2d at 1173; Edm6ndson v. 'Simon, 497 1~. Supp. 411,413 (N.D:.Ill. 1980). Courts have looked to whe~h~r ~hejobs share 'common core' of tasks, .i.e., whether a significant portion of ~e.two jobs is identical.'~ Fallen v. Hlinoi.s., 882 F.2~d:' i206, 1209 (7th Cir. 1989); B~wst~r v. Barnes. 788 F.2d 991; EEOC v. Shelby County Government, 707 F. Supp. 969 (W.D:Tenn. 1988). It is actual job content and job requirements~ no~ necessarily the job description, that controllins in deten-o_[uing whether jobs are substantially eq_uaI. Eoste~n v. Secretar~'..o~th¢ Treasur~._, 739 F,2d 274 (7thCir: 1984); .Orahood~ 64~ F.2d at 6~4; 29 C.F.K: 1620.13(e). " The burden is on the employ~ to identify a particular co-employee of a different gender: -~(i.e.,:a "compa:~ator') for purposes of the inquiry. It is not sufficient ~o compare oneself a hypothetical or "compos~td' comparator. ¯. I~ a complainant establishes a prima facie case, the barden then shifts to the employer to prove~ by a preponderance of the evidence, that the pay differential is justified by existence of one or mere of the four (4)statutory exceptions that permit salary differences: (1) a seniorit~y system; (2) a merit system; (3) a system that measures e~-nin~s by quantity or quality ofp~oduction; or (4) a differential based on "any factor other than sex.." ~s this is an a~f-.u-mafive defense, the employer must prove i~ by a preponderance of the-evidence. If'the employer proves the a.f~tive defense, the complai-uant°s claim ~ails, unlss~.the , comp!ainant can persuasively rebut the employer's evidenc~ regardin~ the above ~actors.

........

........ Salary differentials that stem from unequal start~_ng salaries do not -~olat¢ the F_.PA if the employer can show that the original disparity was justified by a Ieg[t~rnate factor otk¢~ .sex. The Supreme Court has held that a"bona fide job classification s~tem'" ~s a "factor other than sex," and, therefore, 65ffarences resulting there from are (4), so long as the system ~s applied in a gender-neutral mannar.

Case 1:06-cv-00306-MCW

Document 21-5

Filed 03/15/2007

Page 16 of 18

In au EPA case, the focus is not on job descriptions or titles but job requke.me~, and. peffo~z=. ~ ad&fion, an Agency do~ not ca~ i~ b~den of sho~g ~at a wag= ~crenfial is !~gitimat~ m~r~ly by ~it~g to d~s~ audits that issue ~e properly classifie& A~s v. S¢cm~ of Veterans Aff(~s, 0 ~992806 (2000)~ ~ ~e a~is~ative judge ~al~ed ~the. cl~ under Title V~ hav~g found complaint had not ~seged a cla~ ~der ~e EPA. On appeal, the Cohesion considered ~e compla~t'S.clNm of gender-based pay ~s~fion ~der N~ s~d~ds set fo~h ~ the EPA, ci~g~g. Glass Wor~ v. Bre~ 4i7 U.S. 188, 195 .(1974) ~d ~old v. Secret~of:Tr~su~, 01960490 (1998). ~ A~s the Co~ission ~e Com~ssion~a~y ~rees with the ~'s~g ~t compl~t demons~at~ that she w~ ~scfim~ated agai~t on ~e basis of her gendeg when she was paid a GS:! 01-09 Sal~ while peffo~g dufi~ subsm~a~y simil~ to those of rune Addiction Therap~ts paid at the GS-I01-11 level. additio~ althou~ the agency ma~tai~ed that ~mplNn~t was ~aded at the GS-I 01-09 level due~6 ~ ~te~N .c[~sification ~stem ~d confined-by a~ency desk au~; We ~d that ~e agency failed to meet [ts burden ~der the EPA ~ es~blishing a vNid.~atiNe defense to Se pres~pfion of genderbasM wage ~sc~ation. As the ~ no~e~:a job classifica~on.system~not a defense to a ~ faci~ c~e .of gender-b~ed wage discmination if Nves~gation-shows ~at it does-not ac~mtely reflect the acma1~,~es performed by iad ividuNs in the:~fferent classifica~ens: We find that a review oft he recvrd suppo~ ~e AJ~s- conclusian tSat complaint was peffo~i~g sgbst~fia~!~, e~ual workas were ~ecomparative male Addition Therapists whowere ~_~d at the. GS,101,11 Ie~el~ ~e ~ noted that d~erence in their wo~ was mi~mal:d~pite Ne agenc~s classification s~tem, and ~e alleged differences.listed by ~e agency are at odds ~th ~e, d~k aud[~. ~ ~e record reflects ~at qomplain~t ~d ger male cemparators were peffo~g subst~fially equa!Ne~k, the.Net that ~e agency peffo~ed t~ee desk andi~s and each t~e concluded that.c~mplain~t w~ properly gaded does not c~ ~e agenc~s.b~den.". Therefore, even if a desk audit had been conducted in this case, the results would not have disposed of the issue of wt~ethcr the Complainant and 'her rune co-workers were performing "substantially equal work."

Case 1:06-cv-00306-MCW

Document 21-5

Filed 03/15/2007

Page 17 of 18

9

The Complai~aut has identified a male co-worker, a GS-9, Engineering Te~'.'viaa~--as a comparator for the purposes of the EPA inquiry, However, the Complainant has failed to establish a prima facie case because she ~ mhde no showing ~at she-.~-a~l~erf~g. .... "equal work" to that of the male comparator. She herself established in her at~__da_vit that :_--after the personnel officer notified ma~tagement ofitz classification decision, management redistributed her temporary COR duties to a GS~9, Engineering Teeimieian. Consequently, she and the aforementioned higher-graded male comparator did not-actually perform ~e Here, the Agency finds, b~ed on an analysis of actual job content reflected in the record, that Complainant has failed to establish a prima faci~ case of discrimination under the EPA. The preponderaace~'.of the evidence supports a finding that Complainant's job wasnot "equal work" to that of the male comparator within the meaning oftlae Act. Although at ~mes there-may have been some overlap between Complain~.vt's job duties and those of .~e higher-grdde male comparator, there was enough disparity in their actual work¯ to ............ -preclude-a finding that. the jobs were substantially equal. Courts have determined that " aetiia!~obperfom~ance is relevam to a determination of whether work is ' .... ~uo~aau~ny - :equal.": SpeCifically, ,(t)he eo~ideration of equal pay standards is based on actual job req~ai~ements.'-and performance, not- on job classifications or tittes."Homer ~. Mary_. I.nsttate, 613 -F.2d at 714, quoting Peltier v. City ofF.argo, 533 F.2d 374,.377 (Stla Cir.

Given the Complainant's testimony that following Se redistribution of COR]ER duties that .. : she was not performing tlae same duties as ~e male comparator, we have no choice but to .... ~ = find thatshe failed to makea prima facie case ofdiscriraination under the EPA. She was .. notperforming the same Work as her comparator_

. Zhe weigR_t .o.f the evidence indicates that d~scrimination did not occm- with respect to the issues raised in this complaint. Accordingly, no relief or corrective action is warranted or ordered i'n thi~ matter.

The following are ~e only rights available to challenge this decision:

Case 1:06-cv-00306-MCW

Document 21-5

Filed 03/15/2007

Page 18 of 18

10 APPEAL TO T~, EEOC A Notice of Appeal may be filed with fire EEOC within receipt of t!~s ~-,d~-fie~i~io~"~EEOCF0rm573, ~ofi~ of Appc~edtton, should be u~cd ~ fil~g the appeal, ~-w¢ll as what is being appeMed should copy of EEOC F0~ 573 is prodded with ~is decision. Such notice should b~ ad&essed

EquM Empio~ent Oppomni~ Co~ission "~: - Office of Federal Operations P.O. Box 19848 :. '~' Was~ngton~ DC 20036 As an alternative to marling, your appeal may be hand-delivered to: ¯ ' Equal Employment Opportunity Commissibn --Office of Federal Operations 1801 L Street, N.W. - ........ ¯,, , .W..ashingt~_ DC -29507

As an alternative, yo.u m~y.also.~s~md._.yom~..appea!.by.faxce¢he Office'ofF ed~iaFOpemfions

If there is an attorney of record, the thirty (30) calendar day time li~t Within which to appeal shaI1 be calculated from the date of receipt of this decisi6n byi~:~.:.In all other cases,/~,.tho thirty (30) calend~ day time lkr~t within which t~ appeat ghal! be calculated fr'om the date of your receipt of this decision, The appeal shall be deemed flied on the day i~ ~ postm_~ked, or in-the absenee .of a posmmrk~ on ~e ~e ~.t is received by ~e EEOC. " ....... ~ - ~ ......... , - ~t ~ same time i~on~n.~,~ded.t~e-EBOC-(t~c~de a copy6f~eNofice of Appeal ~d any sub~ssions ~ suppo~ of the appeal), there m~t be a so.ice ce~fion that a copy of~e sub~sLon~ h~ submi~ed tothe USD~mpioyment Adju~cation DN~ion ~d the ~te and me~od ofse~ce. A copy of the appe~ and ~y sub~ssions ~n suppo~ ~ereof shalI be founded to ~e agency at ~e follow~g ad~es~:
Department of Agriculture : . . Office of Civil Righfs Employmem Adjudication Division 1400 Independence Avenue, S.W. - Mail Stop 9440 Wash~n~on, DC 20250-944~