EEOC Appeal 2020001651

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Brigette L.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020001651
Hearing No. 460-2018-00034X
Agency No. 2003-0580-2017101958
DECISION
On December 17, 2019, 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
November 25, 2019, final order 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 Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq., and the Equal Pay Act of 1963 (EPA), 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 Staff Radiologist,
Physician Grade 15, in Diagnostic Radiology at the Agency’s Michael E. DeBakey Veterans
Affairs Medical Center in Houston, Texas.
Complainant began working for the Agency in October 2004. Complainant received Special Pay
computations in October 2004 and October 2005. 	In January 2006, Physician Pay Panels were
implemented. 	Complainant was considered by Physician Pay Panels in May 2006, December
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.

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2007, December 2009, March 2012, January 2014, March 2016, and July 2017. In addition to cost
of living adjustments, Complainant’s salary was increased after Physician Pay Panel review in
2006 (approximately $46,000), 2007 (approximately $9,500), and 2009 (approximately $9,000).
Pay freezes were in effect in 2012 and 2014, so Complainant received no salary increase in those
years.
The March 3, 2016, Physician Pay Panel was chaired by Person A, Chief of Staff. Other members
of the pay panel were Person B and Person C. The pay panel conducted a two-year review of four
radiologists: Complainant, Doctor 1 (female), Doctor 2 (male), and Doctor 3 (female). Person D,
Chief of Radiology, served as the Presenter at the Physician Pay Panel, but she did not request an
increase in pay for any of the four radiologists. Person D retired after this pay panel.
The criteria applied at the March 3, 2016 pay panel for the four radiologists included: recruitment
difficulties, patient wait times, ability to provide certain services, unique skills of the provider,
board certification of the provider, work productivity/output of the provider, academic rank of the
provider, and productivity comparison within the work unit. The pay panel did not recommend a
change in salary for any of the four radiologists reviewed in March 2016. 	The Medical Center
Director approved the recommendation of the pay panel. Complainant’s total salary did not change
and remained at approximately $258,261.
Thereafter, the new Chief of Radiology and the new Acting Diagnostic and Therapeutic Care Line
Executive having reviewed all of the more recent radiology salaries of newly hired employees
determined that three providers (Complainant, Doctor 1, and Doctor 4 (female)) who had been at
the Agency for a while had been “leap-frogged” and requested that the Chief of Staff’s Office hold
a “for-cause” pay panel outside of the normal two-year review cycle to examine their salaries.
The June 30, 2017, “for cause” retention Physician Pay Panel was chaired by Person B. 	Other
members of the pay panel were Person E and Person F. The criteria applied at the pay panel for
the three radiologists included: recruitment difficulties, patient wait times, services provided,
unique skills of the provider, board certifications of the provider, productivity of the provider,
academic ranking of the provider, and comparison with current providers in the work unit. The
panel recommended to the Medical Center Director that Complainant’s pay be increased and the
Medical Center Director approved the recommendation of the panel. 	Complainant’s pay was
increased to $291,000 effective July 9, 2017.
On May 1, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (East Indian), sex (female), and age (73) when on February 24,
2017, she learned that her salary was approximately $25,000 - $30,000 less than her peers.
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). Complainant requested a hearing. The AJ
assigned to the case granted the Agency’s motion for summary judgment and issued a decision
without a hearing on November 20, 2019.

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The Agency subsequently issued a final order on November 25, 2019. The Agency’s final order
fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected her
to discrimination as alleged.
Complainant filed an appeal from the Agency’s final order on December 17, 2019. Complainant
requested an extension of time to file her brief in support of appeal. 	The Commission granted
Complainant’s extension request and gave her until January 27, 2020, to file her brief.
Complainant did not file her appeal brief until March 25, 2020, which was beyond the applicable
deadline. Thus, the Commission will not consider Complainant’s untimely filed brief in support
of her appeal.
ANALYSIS AND FINDINGS
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, (EEOC Compliance Manual) 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).
“Employers can offer higher compensation to applicants and employees who have greater
education, experience, training, or ability where the qualification is related to job performance or
otherwise benefits the employer’s business.” 	EEOC Compliance Manual at 10-IV. 	The
Commission has noted that such a qualification would not justify higher compensation if the
employer was not aware of it when it set the compensation, or if the employer does not consistently
rely on such a qualification. Id. Furthermore, the difference in education, experience, training, or
ability must correspond to the compensation disparity. Id.

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The Commission has recognized that continued reliance on pre-hiring qualifications is less
reasonable the longer the lower paid employee has performed at a level substantially equal to, or
greater than, his or her counterpart. Id.
In the present case, assuming arguendo that Complainant established a prima facie case of
discrimination under the EPA, we find the AJ properly found the Agency has shown that the pay
differential was based on a factor other than sex. Complainant was hired in 2004 and received pay
raises before the Agency implemented pay panels in 2006. Thereafter, Complainant received pay
panel reviews in 2006, 2007, 2009, 2012, 2014, 2016, and 2017. 	The pay panels reviewed and
approved salary increases for Complainant in 2006, 2007, and 2009. The Agency had pay freezes
in effect in 2012 and 2014 and no employees received pay increases those years. In 2016, the pay
panel considered Complainant and three other staff radiologists at the facility, but did not
recommend an increase for any of them, including a male staff radiologist. The record reveals the
pay panels reviewed a variety of factors including recruitment difficulties, patient wait times,
ability to provide certain services, unique skills of the provider, board certification of the provider,
work productivity/output of the provider, academic rank of the provider, and productivity
comparison within the work unit when making their reviews and determinations. Upon review,
we find record establishes the criteria the Agency used in determining pay for radiologists at its
facility is a gender-neutral factor, applied consistently, and that Complainant failed to show that
the Agency violated the EPA.
Next, we address Complainant’s claim that she was subjected to disparate treatment based on her
race, sex, and age. To prevail in a disparate treatment claim, Complainant must satisfy the three-
part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof
of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 802 n. 13. 	The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. 	Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of
the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000).
Here, we concur with the AJ’s finding that assuming, arguendo, Complainant established a prima
facie case of sex, race, and age discrimination, the Agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions. The record establishes, and Complainant has not put
forth any evidence to challenge, that the pay panels would review the salaries of physician
employees on the stated criteria, including productivity. For the reasons discussed above, we find
that Complainant failed to show that the salary difference at issue was motivated by discriminatory
animus.

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Moreover, we note that the Agency stated that Complainant’s salary was not increased in March
2016, because her productivity was low, her qualifications were rated near median (on a scale of
low, median, high), and her supervisor did not request a raise. 	Person A noted that no two
physicians are alike and that the biggest factor that creates pay parity situations is the fact that new
employees usually set the bar for higher pay because of competition with other hospitals. Person
A stated that in her presentation, the Chief of Radiology did not request a pay increase for any of
the four radiologists up for review in the March 2016 cycle, and he believed Complainant was
“leap frogged” which happens with regularity. The Agency noted Complainant named six male
physicians of various races who were paid more than her and who were younger than her. The
Agency noted that of the six named physicians, three were hired in the past three years. 	The
Agency noted those three would be included in Person A’s explanation regarding competition with
other hospitals. 	Further, the Agency noted that the remaining three had significantly higher
productivity than Complainant in Fiscal Years 2014 and 2015. Upon review, we find Complainant
failed to show that the Agency’s articulated, nondiscriminatory reasons were a pretext for
discrimination.
CONCLUSION
Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration. A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within 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).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support 	of 	his 	or 	her 	request, 	via 	the 	EEOC 	Public 	Portal, 	which 	can 	be 	found 	at
https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her
request and arguments to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013,
or by certified mail addressed to 131 M Street, NE, Washington, DC 20507.

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In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely
filed if OFO receives it by mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless
complainant files his or her request via the EEOC Public Portal, in which case no proof of service
is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. 	Any supporting documentation must be submitted together with the 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.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408)
You are authorized under section 16(b) of the Fair Labor Standards Act (29 U.S.C. § 216(b)) to
file a civil action in a court of competent jurisdiction within two years or, if the violation is willful,
three years of the date of the alleged violation of the Equal Pay Act regardless of whether you
have pursued any administrative complaint processing. The filing of the civil action will terminate
the administrative processing of your complaint.
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.

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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
November 10, 2020
Date