01A44047_r
01-10-2005
Alan Day, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, (Bureau of Reclamation), Agency.
Alan Day v. Department of the Interior
01A44047
January 10, 2005
.
Alan Day,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
(Bureau of Reclamation),
Agency.
Appeal No. 01A44047
Agency No. WBR-04-020
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 10, 2004, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In his formal complaint filed on February 26, 2004, complainant alleged
that he was subjected to discrimination on the basis of age when agency
management did not follow OPM regulations found at 5 C.F.R. � 532 while
negotiating his wage rate for the years 2002 and 2003.
On May 10, 2004, the agency issued a final decision that is the subject
of the instant appeal. Therein, the agency dismissed complainant's
formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to
state a claim. The agency determined that the matter raised in the
instant complaint was not within the jurisdiction of the Commission.
The agency further stated that any claims relating to pay issues governed
by bargaining units are remedied through appeal under the Prevailing
Rate System Act of 1972.<1>
After a careful review of the record, the Commission determines that
the matter raised in the instant complaint is beyond the jurisdiction of
the Commission. A review of the record reflects that the matter raised
in the instant complaint relates to a purported adverse pay conversion.
We find that this matter is more properly pursued through the appeals
process within the Prevailing Rate System Act of 1972. Accordingly,
the agency's final decision dismissing the complaint was proper and
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
January 10, 2005
__________________
Date
1The Prevailing Rate System Act of 1972 is codified at 5 U.S.C. � 5341
- 5349, and is commonly referred to as the prevailing rate statute.
Section 5341 provides that the general policy of the prevailing rate
statute is that the rates of pay of prevailing rate employees are to
be fixed and adjusted from time to time, as nearly as consistent with
the public interest, in accordance with the prevailing rates paid
for comparable work in the local area by private sector employees.
Under Section 5342, the OPM is responsible for defining geographical wage
areas and for designating a lead agency for each area. Lead agencies
are responsible for conducting wage surveys, analyzing wage survey date,
and developing and establishing appropriate wage schedules and rates
for prevailing rate employees.