Employment Law Daily Administrative assistant doing higher-level work failed to show unequal pay
Friday, January 15, 2016

Administrative assistant doing higher-level work failed to show unequal pay

By Brandi O. Brown, J.D. The Seventh Circuit affirmed summary judgment for the Federal Aviation Administration on discrimination and retaliation claims by an administrative assistant who asserted that she was doing the job of a program analyst while being paid at a lower grade. Though she alleged that she was paid less because of her gender and was not promoted due to her national origin, she failed to provide evidence that she ever requested a desk audit or applied for a promotion and she did not identify any male program analysts who could serve as comparators. She also produced no evidence that she had opposed discriminatory practices (Jaburek v. Foxx, January 13, 2016, Bauer, W.). Access revoked, told it wasn't her job. The employee, who is of Mexican descent, had 26 years of service with the federal employer. She claimed that after several years of performing the duties of two program analysts who had moved on to greener pastures, she was told by a new manager that her duties were that of a "Secretary" and not a program analyst. Her access to a government database used to process procurement requests was disabled and she was told it was not her duty to process those requests. She filed an EEO complaint with the Department of Transportation, alleging that the manager's actions were discriminatory and retaliatory. Unpaid for higher level work. According to the employee, although she performed the duties of a program analyst and had informed several prior managers of the duties she was performing, she remained at the GS-7 pay grade attributable to an administrative support assistant, rather than the GS-11 and GS-12 pay grades of the persons whose duties she was performing. She asserted that the FAA should have done a “desk audit” after she described her duties to managers and that she had requested one. However, she did not provide any documentary evidence of her request or even the date of her request. Her various managers attested that, to their knowledge, she did not request a desk audit. The district court granted summary judgment to the employer and the employee filed a notice of appeal. Although it was one day late, the court found good cause based on health problems her counsel was experiencing and did not dismiss the appeal. The employer filed a motion to reconsider that decision, which was denied. The Seventh Circuit found that motion was properly denied and affirmed summary judgment. Failure to promote. As to the Title VII failure-to-promote claim, the appeals court found that the employee failed to show that she ever actually applied for a program analyst position. Although she pointed to emails to at least two managers wherein she described her duties as that of a program analyst, that was not evidence of an application for the position. Moreover, her “vague testimony” regarding her request for a desk audit was not enough to show that she applied for a promotion. She did not provide any specifics about when she made the request or whether the request was a “step toward a request for a promotion.” She only stated that the auditors “didn't get back” to her about it. And affidavits from her succession of managers indicated that she never requested an audit, never complained about her lack of compensation, and never applied for the analyst position. Furthermore, the record was devoid of evidence that anyone else was promoted to that position at a time in which she could have applied. Equal Pay Act. Summary judgment was also affirmed on the EPA claim. Crucial to determining whether the work the employee did was equal to that of a male employee was the ability to compare the common core of tasks performed. However, without evidence allowing for such a comparison, explained the appeals court, a jury could not determine whether there was comparability. The employee only identified three male program analysts and none of them worked in the relevant offices. She also did not provide the "common core of tasks" they performed or any other description of their work or qualifications. Thus, she could not sustain her EPA claim. Retaliation. The employee's Title VII retaliation claim also failed. Although she alleged that she was returned to her secretarial duties and her access from the procurement program was revoked after a manager learned of her complaints of inadequate compensation, she failed to produce evidence that she actually complained about prohibited discrimination before the manager took those actions. The only opposition activity she produced evidence of was her subsequent contact with an EEO officer, which "could not have instigated any retaliation."

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