0120113521
11-28-2012
Yvonne Nicks, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Yvonne Nicks,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113521
Agency No. 200303762010104965
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 15, 2011, 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 Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked at the Agency's Records Management Center in St. Louis, Missouri.
On January 2, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and sex (female) when, on September 27, 2009, she was hired at a lower salary step than a similarly situated male employee hired around the same time.
According to the EEO counseling report, Complainant was hired on September 27, 2009, as a Contact Representative at a GS-5, step 1, salary level. The male comparator, hired in August 2009 as a Program Support Assistant, received a "matching salary adjustment" and was placed at the GS-5, step 3 level.
The Agency dismissed the complaint for failure to state. First, it concluded that Complainant failed to state a claim under the Equal Pay Act because she and the named male comparator were hired to fill completely different positions under different job series. The Agency went on to dismiss Complainant's Title VII claims as untimely raised, noting she was hired in September 2009 and knew about the discrepancy in her pay with the male comparator by October 2009, but did not initiate EEO counseling on the matter until September 22, 2010, nearly a year later. Therefore, the Agency dismissed the remainder of the complaint as untimely raised.
The instant appeal followed.
ANALYSIS AND FINDINGS
Failure to State a Claim
The Agency dismissed Complainant's Equal Pay Act (EPA) claim for failure to state a claim, reasoning that she and the named male comparator were hired to fill completely different positions under different job series. The U.S. 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, 195 (1974). To establish a violation of the EPA, a complainant must show that he or she 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. Id. At 195; see also 29 C.F.R. � 1620.14(a).
In this case, we find that the Agency improperly dismissed the EPA claim for failure to state a claim and addressed the merits of the claim without a proper investigation as required by the regulations. The investigation is necessary to gather evidence upon which to make a reasoned decision about whether or not Complainant and the named comparator were performing equal work. The name of the position alone is not enough to make that determination. Accordingly, the Agency erred in dismissing the EPA claim for failure to state a claim.
Untimely EEO Counselor 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 Agency also dismissed Complainant's EPA and Title VII claims as untimely raised with an EEO counselor.
EEOC regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. See 29 C.F.R. � 1614.105(a)(2).
The record discloses that Complainant's pay level was set when she was hired on September 27, 2009, and she learned of the male comparator's pay by no later than the end of October 2009. However, she did not initiate contact with an EEO counselor until nearly a year later, in September 2010. The record indicates that Complainant received employee EEO training, including information on the relevant time deadlines, in late September 2009. When questioned by the Agency prior to the dismissal decision, she explained that she attempted to fix the problem on her own through the human resources department and her union.1 However, the Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000); Speed v. USPS, EEOC Request No. 05921093 (June 24, 1993) (the filing of a grievance does not toll the time limit for contacting an EEO Counselor).
However, while Complainant has not asserted this on appeal, we find that the Agency was still not entitled to dismiss the entire complaint for untimely EEO Counselor contact because it failed to analyze the complaint under the Lilly Ledbetter Fair Pay Act. The President signed the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat 5 ("the Act") on January 29, 2009. The Act applies to all claims of discrimination in compensation, pending on or after May 28, 2007, under Title VII, the Rehabilitation Act, and the ADEA. With respect to Title VII claims, Section 3 of the Act provides that:
...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.
Section 3 of the Act also provides that back pay is recoverable for Title VII violations up to two years preceding the "filing of the charge," or the filing of a complaint in the federal sector, where the pay discrimination outside of the filing period is similar or related to pay discrimination within the filing period. Applying the Act, we find that Complainant timely initiated EEO counseling within 45 days of receiving an allegedly discriminatory pay check.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and the complaint is REMANDED to the Agency pursuant to the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded Title VII claim in accordance with 29 C.F.R. � 1614.108 et seq. 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 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 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
November 28, 2012
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
Yvonne Nicks
7023 Lexington Ave
Saint Louis, MO 63121
Deborah K. McCallum (024)
Assistant General Counsel
Office of General Counsel
810 Vermont Ave., N.W.
Washington, DC 20420
Rosa Franco, Deputy Assistant Secretary, Resolution Management
Office of Resolution Management (08D)
Department of Veterans Affairs
810 Vermont Ave., NW
Washington, DC 20420
__________________
Date
________________________________
Equal Opportunity Assistant
1 At one point, Complainant seems to allege she also consulted with an EEO manager. However, the EEO manager denies such a contact and Complainant provides no proof whatsoever that it occurred or even details about the alleged conversation.
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012011-521
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113521