0120142124
10-30-2014
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120142124
Agency No. 14-00681-00409
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 23, 2014, dismissing her complaint of unlawful 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a manager (Supervisory Human Resources Specialist) at the Agency's Marine Corps, Logistics Base facility in Barstow, California.
On November 15, 2013, Complainant contacted an EEO Counselor. On March 17, 2014,1 Complainant filed a formal complaint alleging that the Agency subjected her to harassment and discrimination on the bases of national origin (Mexican-American), color (Brown), sex (female), age (70), and reprisal for prior protected EEO activity under Title VII, when, on an ongoing basis, the Agency failed to pay her commensurate with her duties and the certified GS-14 position classification, which she encumbers. The Agency reframed Complainant's issues, as follows:
1. On October 18, 2013, Complainant was told by two management officials from the Navy Office of Civilian Human Resources, that they were going to report Complainant to the Director of the Marine Corps Installation Civilian Human Resources Office for refusing to terminate an employee;
2. On October 31, 2013, a third Human Resources Office official told Complainant that she committed a "process foul" and was "ignoring regulations" about her position description;
3. On November 1, 2013, officials from three units of management discussed Complainant's EEO complaint;
4. On November 15, 2013, Complainant became aware, through a response to her Freedom of Information Act (FOIA) request, that the "OCHR-Barstow team was working with CHRO-MCIW about the classification" of her Position Description (PD);
5. On December 2, 2013, Complainant received the Commanding Officer's December 21, 2012 letter regarding the classification of the position description for the position Complainant encumbered at GS-14 (but she was not being paid at the GS-14 level); and
6. On January 29, 2014, Complainant became aware that the Commanding General MCIW did endorse the Commanding Officer's MCLB Barstow letter of January 24, 2014.
The pertinent record shows that Complainant has been the Human Resources Manager / Director for the Maine Corps Logistics Base Barstow for over 18 years. Complainant is a woman of Mexican-American heritage. She was 70 years old. Complainant has prior EEO activity. Her prior EEO activity is known by management. The record shows that one of the officials named in this complaint was a signatory to a settlement agreement executed in 2011. That settlement agreement addressed her performance appraisal. It specifically excluded claims of pay from the agreement's coverage.
Her claim is that the Agency continues to pay her at a lower level and to issue personnel actions that are inconsistent with her certified GS-14 grade level. The record includes the Position Description (PD) for the Supervisory Human Resources Specialist position (PHB182S) and shows that it is classified at the GS-0201-14 level. This is Complainant's assigned position. As relief, Complainant requested that the Agency pay her at the GS-14 level and correct any SF 50 Notification of Personnel Actions for any personnel actions effected on or after June 20, 2010, to reflect GS-14 / and appropriate step in blocks 18 and 19.
As further background, the Agency went through a transition from the National Security Personnel System ("NSPS') and returned to the General Services (GS) system in 2010. All of the positions were converted to the GS system. The Agency entered correct personnel actions for others not in Complainant's protected group, but did not ever effectuate Complainant's GS-14 classification in its subsequent personnel actions and pay.
On October 7, 2011, Complainant filed a certification appeal. Because her PD was already certified at the GS 14 level, the package was returned to the MPC by DCPAS with no action taken. The Agency's stated reason as to why no action was taken was that the "last classified Position Description for [Complainant] was signed off by the classification authority on May 12, 2010 as a GS-14, and DCPAS states there is no classification to appeal." Consequently, the appeal was returned with "no action taken" because the position already had been certified as at the GS-14 level and documented as appropriate for that level.
However, in a notification, dated June 4, 2010 and identified in the record as Enclosure 2, the Agency stated "the classification was supported by the MCIWET staff and is returned for further action." (emphasis added). No further favorable action was taken with regard to Complainant.
The record reflects an email from the Lieutenant Colonel (Employment Labor Counsel) to Human Resources. The Lieutenant Colonel questioned why the appropriate actions had not been taken. He stated, "What I am trying to figure out is why the HRSC has not processed the 2010 GS-14 classification."
Instead of reconciling her pay with her certified grade, management officials collaborated with a number of other units with the apparent intent of rescinding the certification of downgrading Complainant's position and reclassifying her position to a GS-13 position. For two years, the Agency continued to pay Complainant at the GS 13 level and to issue personnel actions that did not recognize that she occupied a position officially certified at the GS-14 level.
On November 15, 2013, Complainant received a response on her Freedom of Information Act request that confirmed that her position was being intentionally "misclassified" and which caused her to contact the EEO Office. The documentation revealed that her position had been classified as a GS-14 on May 12, 2010. She realized then that the Agency had not effectuated that classification in terms of her pay or in the paperwork. As stated by Complainant, the gist of her claim is that "everybody knows the position is a GS-14 and [Complainant is] getting paid as a GS-13."
The Commanding Officer, Marine Corps Logistic Base, Barstow was asked for his review of the situation. The Commanding Officer conceded in a January 14, 2014 letter that Complainant currently encumbers and is officially assigned to PD #PHB1825" and he added, "Again, I concur with the classification of May 2010 and my classification in Block 15C as second review validates and certifies this determination." The determination is supported by enclosures validating that there was the "high grade review of the Supervisory Human Resources Specialist position.
Claim 1 - Threatened
On October 18, 2013, a management official told Complainant that she was going to report Complainant for refusing to terminate an employee who was not under Complainant's supervision. Complainant asked the management official if she was threatening Complainant. Complainant took the statement as a threat. These officials were involved in the Agency's delay in correcting its error.
Claim 2 - Accused of committing a "Process Foul"
On October 31, 2013, Complainant received an email stating to Complainant that Complainant was committing a "process foul" and "ignoring regulations" with regard to her GS-14 Position Description. The management official told her that she works for the management official who was trying to downgrade Complainant.
Claim 3 - Discussions between three management units regarding "grievance resolution"
Complainant's EEO complaint was the subject of discussions with headquarters and two other units with regard to lower level efforts to downgrade her position after she challenged the Agency's inaction to correct the situation as based on discrimination and reprisal against her.
Claim 4 - FOIA response
On November 15, 2013, Complainant received a FOIA response that confirmed that her position had been classified for sometime as a GS-14 position, but that she still was not being paid and the personnel actions did not reflect the certified classification. The FOIA response also indicated that upper management had reviewed the position description and confirmed that the position was a GS-14 position. On December 2, 2013, Complainant was informed by a management official that the management official had classification authority and she was working on it. The record indicates that the official was trying to downgrade the position to a GS-13 and reverse upper management's decision that Complainant's position was a GS-14 position.
On January 24, 2014, the Commanding Officer again confirmed that he concurred in the certified classification of the position at the GS-14 level and referenced documentation supporting the decision.
Claim 5 - Failure to correct personnel action and provide equal pay
The Commanding Officer's decision was not reflected in her pay or personnel actions. All other MCLB employees transitioned from the NSPS to GS under the same headquarters guidance. Complainant was "left behind and not transitioned to the GS-14 pay grade/step on the SF 50 based on the classified PD of May 2010." She states that similar transition actions were made for a male employee, and younger employees not in her protected groups. She named four individuals who were involved in the transition and "subsequent actions / inactions."
Agency Dismissal
Although the Agency concedes that Complainant encumbers a GS-14 position, the Agency dismissed the pay complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim and pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO contact. The Agency reasoned that Complainant was not aggrieved inasmuch as "none of the allegations, individually or together, describes a present harm or loss with respect to a term, condition, or privilege of employment." In addition, the Agency stated that that Complainant's "claim is a collateral attack on a different forum and outside the Title VII process. Next, the Agency concluded that Complainant filed previous EEO complaints regarding the same issue involving her classification and that Complainant's claims were not a part of a continuing violation.
ANALYSIS AND FINDINGS
Failure to State a Claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, 1614.106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
In this case, we find that Complainant is aggrieved and that she alleges a continuing wage-related violation under Title VII and the ADEA. This is a situation where she occupied a GS-14 position, but her pay and personnel actions did not reflect her grade. Her claim is that the Agency refused to pay her for the certified GS-14 level position to which she was assigned. The Agency offered its reason (that no change was warranted because the position was already graded at the GS-14 level).
To the extent that the Agency asserts that it did not act because it felt no action was warranted, this addresses the merits of the claims and is irrelevant to the procedural issue of whether Complainant has stated a justiciable claim under Title VII or the ADEA. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991).
Further, we find that this claim that was not the subject of any previous litigation. Here, she alleges management took no efforts to rectify the situation, allowed employees to threaten Complainant and allowed actions to change to downgrade the position to a GS-13 position after certification and contrary to the Commanding Officer's and upper management's determination. Moreover, Complainant alleges she began to get harassing comments directed toward her efforts and threatening her. Complainant has shown an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Untimely EEO Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. In this case, Complainant made EEO contact when she received a response to FOIA request, which confirmed that she was being paid in a manner that was inconsistent with her certified grade level.
The matters raised suggest a hostile work environment. The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id.
Further, we note that the Lilly Ledbetter Fair Pay Act of 2009, Public Law 111-2, 123 Stat. 5, became law on January 29, 2009. The Act applies to all claims of discrimination in compensation under Title VII, the ADEA, and Title I and Section 503 of the Americans with Disabilities Act of 1990 and Sections 501 and 504 of the Rehabilitation Act pending on or after the effective date of the Act. Regarding Title VII, the law provides:
... an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or part from such a decision or other practice.
In this case, Complainant is alleging an ongoing violation of Title VII and the ADEA with respect to discrimination in compensation. As such, Complainant was entitled to pursue her discrimination claim each time these alleged discriminatory wages were paid, which included when she sought counseling in November of 2013. Therefore, we find her compensation claim is timely. In addition, she alleged acts of harassment and reprisal within 45 days of the date that she sought counseling. Therefore, her claims are timely inasmuch as we find that they were part of a continuing violation.
Upon review, the Commission finds that Complainant's complaint was improperly dismissed.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tends 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 30, 2014
__________________
Date
1 Complainant timely filed her complaint. The record shows that the notice of Right to File a Complaint had been lost in the mail. Complainant timely filed within 15 days of receipt.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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