The Equal Opportunity Employment Commission failed to persuade a federal judge to fully end a lawsuit accusing it of workplace discrimination for allegedly paying a Black woman who worked in the information technology department less than the white man who previously held her job.
According to court documents, Alison Hardiman began working at the EEOC Chicago district office in 2007. On Nov. 20, 2015, she filed a complaint with her employer — a federal agency tasked with prosecuting claims of workplace discrimination — claiming she didn’t get a promotion, proper compensation or sufficient assistance to manage a significant IT project. In August 2018, after a May 2018 ruling in with the EEOC issued a final order in favor of itself, she filed her federal lawsuit.
In an opinion filed March 15, U.S. District Judge John Tharp Jr. partially granted the EEOC’s motion for summary judgment. According to Tharp, Hardiman started work classified in the seventh level of the federal general schedule classification. A year later the EEOC promoted her to GS-9. Through 2010 she worked with another man, who was white, who started at GS-11 and earned a promotion to GS-12.
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When that man transferred to another office in 2010, Hardiman interviewed to be his replacement. Although Chicago office leaders selected her, an agency-wide hiring freeze ultimately inhibited her promotion. Also germane to her lawsuit was her work in late 2015 managing migration of the office software to Windows 7. Tharp’s history of the proceedings detailed Hardiman’s arguments that EEOC didn’t provide significant external help for that process. Although Hardiman has continued to manage migrations, which she said aligns with her predecessor's responsibilities and not those of a GS-9 job, the GS-11/12-level position remains unfilled.
Tharp said the complaint regarding the promotion specifically is time barred, but added “a reasonable juror could find that the EEOC was paying her less for performing the same duties as her white male counterpart” and refused summary judgment on that claim. The decision means the case could yet proceed to trial.
According to court documents, Hardiman’s Chicago bosses chose her to fill the vacancy on Jan. 11, 2011. Tharp noted federal employees have 45 days to raise discrimination complaints with an EEOC counselor. Hardiman said the statutory window remains open because she is alleging the agency is effectively concealing her promotion by having her fulfill elevated responsibilities while leaving her classified as GS-9.
“But as Hardiman herself admits, her selection for promotion was no secret. Nor was the fact that, despite her selection, she received neither new title nor additional compensation,” Tharp wrote. “Hardiman admitted that in May 2011, the EEOC notified her that it was no longer filling the GS-11/12 position due to a hiring freeze. The undisputed facts demonstrate that Hardiman knew in 2011 that the EEOC selected her for promotion yet could not implement the promotion in practice. The EEOC did not conceal anything from Hardiman, let alone anything that would justify tolling her claim for almost five years.”
Although he granted summary judgment on the discrimination claim related to the promotion, Tharp sided with Hardiman on her allegations she has worked at the GS-11 level for a dozen years while being paid the GS-9 rate. She successfully argued each paycheck constitutes a new unlawful employment practice triggering a distinct 45-day window for legal action. Tharp noted the EEOC itself in a final administrative order determined “claims of discriminatory compensation were timely filed” under Title VII of the Civil Rights Act.
The question then becomes, Tharp explained, whether Hardiman’s work in 2015 was materially similar to her predecessor's 2010 responsibilities, and the question of whether Hardiman’s job description reflected “her work in practice” present a factual dispute.
“(Her predecessor) admits that he did not supervise Hardiman when they worked together, and both Hardiman and (her predecessor) listed the EEOC District Director as a direct supervisor in affidavits submitted to the EEO Counselor,” Tharp wrote. “That Hardiman was selected for the GS-11 position in 2010, moreover, strongly suggests that she met the qualifications for the position in 2015. After all, Hardiman only gained more experience and qualifications in the five years following her selection for promotion.”
Tharp did say “racial discrimination is not the only conceivable explanation” for Hardiman’s alleged pay disparity, but explained her evidence of serving as the Chicago office’s senior IT resource is sufficient to warrant further proceedings.
Regarding allegations the EEOC failed to adequately provide support during the Windows 7 migration, the agency conceded Hardiman’s claims weren’t time barred but said she failed to show it materially changed her job description in a discriminatory fashion.
“Hardiman testified that the EEOC denied her requests for compensation for training opportunities that she pursued,” Tharp wrote. “Missing from Hardiman’s testimony, however, is any mention of the content of these trainings, their effect on her employment opportunities, or even whether the EEOC authorized Hardiman to pursue these trainings.”
Beyond that, Tharp added, Hardiman’s complaint failed to show how any of her allegations of the EEOC failing to provide proper job support were rooted in animus motivated by her race or sex. She also showed no “evidence to support the inference that the EEOC paid for (her predecessor's) trainings or that the trainings she pursued, as a lower grade level employee, were materially similar.”
Tharp further agreed Hardiman lacked evidence to support her claim the EEOC committed retaliation for her initial complaint.
Hardiman is represented in the case by attorney Keith L. Spence, of Chicago.
The EEOC is represented by attorneys from the U.S. Attorney's Office for the Northern District of Illinois.