In Crim v. Department of Veterans Affairs, EEOC Appeal No. 01A60301 (April 7, 2006), the Equal Employment Opportunity Commission (EEOC) affirmed an administrative judge’s (AJ) decision without a hearing in favor of the agency holding that the female complainant failed to prove the agency violated Title VII or the Equal Pay Act despite that the agency was indisputably paying a male employee a higher salary for similar work under similar working conditions.

The complainant was a Medical Records Technician, GS-7, Step 1 at the agency’s Martinsburg, West Virginia facility. From 1988 until 2002, complainant worked in the private sector. In 2002, she was hired by the agency as a GS-6 with a salary of $28,253, which was a slight raise for her. In June 2003, the agency selected a male for the position of Medical Records Technician, GS-6/7/8. The male, who was working in the private sector, refused the agency’s offer to place him in the position at the GS-6, Step 1 level. Instead, he negotiated for a salary that approximated his private sector pay of $40,998 at the GS-6, Step 10 level, or $38,297.

In August 2003, the complainant was promoted to GS-7, Step 1, or $32,736. In May 2004, she learned the male was paid at a higher level for performing similar duties and filed an EEO complaint under both Title VII and the Equal Pay Act (EPA). After she requested a hearing, the AJ notified the agency of her intent to issue a decision without a hearing, and the agency then moved for a decision without a hearing. The AJ ruled in the agency’s favor, finding that the agency did not violate the EPA or Title VII.

On appeal, the EEOC determined that with regard to the complainant’s Title VII claim, the male was not similarly situated to her because he was a new hire from the private sector, unlike the complainant who had been working there since 2002. The EEOC held that to prevail, the complainant must demonstrate that a male GS-6 Medical Records Technician who was hired internally at the same time as the complainant and progressed up the career ladder in a similar matter as the complainant was paid at a higher salary.

Under the EPA, to establish a prima facie case, a female complainant must show that she received less pay than a male for equal work, requiring equal skill, effort and responsibility, under similar working conditions within the same establishment. See 29 C.F.R. § 1620.14(a); Telford v. Department of the Army, EEOC Appeal No. 01973892 (November 2, 1999). Once the complainant has met this burden, the agency may avoid liability only if it can prove that the pay difference is justified under one of the four affirmative defenses set forth in the EPA: 1) a seniority system; 2) a merit system; 3) a system which measures earnings by quantity or quality of production of work; or 4) a differential based on any other factor other than sex. See 29 U.S.C. § 206(d)(1). The requirement of “equal work” does not mean that the jobs must be identical, but only that they must be “substantially equal.”

The EEOC determined that the complainant established a prima facie case by showing that she received less pay than the male for equal work requiring equal skill, effort and responsibility under similar work conditions within the same establishment. In response, the agency claimed that it relied upon factors other than sex in setting the male’s salary, i.e., that his qualifications exceeded the minimum requirements for the position, that he had several years of relevant experience, and that he held an MBA degree. The EEOC found that the complainant did not create a genuine issue of material fact about the male’s qualifications because she provided no evidence to prove that the male’s résumé was inaccurate.

Consequently, the EEOC concluded that the agency proved that its consideration of the male’s previous salary to determine his starting salary was a factor other than sex. See Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982) (An employer may consider prior salary when it is used “reasonably” in view of a business objective.); Horner v. Mary Institute, 613 F.2d 706 (8th Cir. 1980) (Prior salary may sometimes be used as an indicator of market demand, thus excusing an employer from EPA liability under the factor other than sex defense.).

This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com .

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