Kudos to the Dept. of Agriculture executive who took on the bogus promotion selection system at Agriculture and won big. She filed an (EEO) complaint alleging that she was discriminated against based on her gender when from 2010 to the present Agriculture failed to pay her at a level similar to a male employee performing similar work. She claimed that violated the Equal Pay Act (EPA) and Title VII of the Civil Rights Act of 1964.  In May 2010, the Agency offered the Complainant the position of Associate Chief Information Officer (ACIO), at a starting salary of $159,416, lower than her male predecessor’s starting salary of $172,200 in 2008.  HR tried to explain this away by claiming that the Complainant and her male comparator were hired by different people and therefore there was no intent to discriminate. Sounds hugely bogus to us, but EEOC slapped Agriculture’s argument down by pointing out that. . .

1-intent to discriminate is not a necessary element to prove an EPA violation, but more importantly

2-HR had no actual evidence from either CIO involved in setting the salaries as to how they made their decisions. Apparently, HR wanted EEOC to take its word for it.

HR then proclaimed that Complainant’s predecessor had impressive private sector experience Complainant did not possess.  That might have helped HR except for the fact that once again HR failed to produce evidence or testimony at the hearing regarding the factors management considered in setting the predecessor’s salary. The record contained no evidence that the predecessor’s prior experience was actually a factor relied on to set his pay higher. Moreover, although Complainant’s first line supervisor recommended Complainant’s starting salary be $172,000, HR had no evidence explaining how the woman was only offered $159,416.00

EEOC wrapped up its analysis with the following words, “Based on the vague references to possible reasons for the pay disparity and lack of information reflecting how the salary of Complainant and her predecessor was set, we concluded the Agency failed to satisfy its burden by a preponderance of the evidence to show that the pay differential was based on a factor other than sex.”

We are passing along this case because of how clearly it shows that if an employee will just demand actual evidence to back up HR claims as to why they were not promoted (or reassigned or trained or given a bonus), it will often find HR has no actual evidence.  When the “management rights” sections of the federal employee labor laws were enacted most of the HR world concluded that would give them immunity from grievances and there was no need to fully document the basis for major personnel actions.  Cases like this demonstrate that employees and their union reps can get around the “management rights” provisions by invoking laws outside the labor laws to put a substantial burden on agencies’ HR shops to back up their often bogus claims.

EEOC rewarded the SES exec with back pay retroactive to 2010.  It also ordered the agency to double whatever amount that might be.  That’s because under the EPA employees get what are called “liquidated damages” or twice the amount of back pay owed.  Finally, it ordered the agency to also pay the employees compensatory damages. Our best guess is this executive is about to get a check for a quarter of a millions dollars due to sloppy HR work.

If you want to check out the case details you can find them in Mercedez A., Complainant, v.  Sonny Perdue, Secretary, Department of Agriculture, EEOC Request No. 2019004025, EEOC Appeal No. 0120170574 (2019).

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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