Arturo B.v.Dep’t of Veterans Affairs

Equal Employment Opportunity Commission

Aug 15, 2019

EEOC Appeal No. 2019003555 (E.E.O.C. Aug. 15, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Arturo B,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 2019003555

Agency No. 2004-0005-2018105507

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's final decision dated December 17, 2018, dismissing his
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.

BACKGROUND

During the period at issue, Complainant worked for the Agency as a Computer Assistant-GS-7
in Richmond, Virginia. On November 13, 2018, Complainant filed a formal complaint alleging
that the Agency subjected him to discrimination based on race .

On December 17, 2018, the Agency issued a final decision. The Agency determined that the
formal complaint was comprised of the following claim:

On April 9, 2018, [the named Chief, Human Resource Management Service]
rescinded an initial pay offer to him and said he would have to accept a lower
salary.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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The Agency dismissed the formal complaint for untimely EEO Counselor contact. The Agency
reasoned Complainant did not initiate EEO contact until August 2, 2018, outside of the
applicable time period.

The instant appeal followed. On appeal, Complainant asserts that he received the Agency’s final
decision on December 17, 2018 and that during the timeframe to file an appeal with the EEOC,
the government shutdown occurred.

ANALYSIS AND FINDINGS

As an initial matter, we find Complainant’s appeal to be timely. The record reflects and
Complainant acknowledges on appeal that he received the final agency decision on December
17, 2018. Complainant filed his appeal with the EEOC on May 9, 2019. Complainant, however,
is represented by an attorney. 29 C.F.R. § 1614.605(d) provides, in pertinent part, that “[w]hen
the complainant designates an attorney as representative, service of all official correspondence
shall be made on the attorney and the complainant, but time frames for receipt of materials shall
be computed from the time of receipt by the attorney.” While the record reflects that the Agency
sent the final agency decision to Complainant’s attorney via email on December 17, 2018, it is
unclear from the record when Complainant’s attorney actually received the Agency’s final
decision.2 Based on the foregoing, we find Complainant’s appeal to be timely.

We further find that the Agency improperly dismissed the formal complaint for untimely EEO
Counselor contact. Complainant is alleging ongoing compensation discrimination when he was
promised a specified salary when he accepted a position but was then told by Agency
management that due to a “mistake” he would have to accept a pay decrease. Complainant is
alleging race discrimination with respect to his compensation. Complainant is seeking the higher
salary he was promised retroactive to his hiring date.

The Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5, applies to all claims of
discrimination in compensation, pending or after May 28, 2007, under Title VII, the
Rehabilitation Act, and the Age Discrimination in Employment Act. With respect to the Title
VII claims, section 3 of the Ledbetter Act 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

2 The record reflects that Complainant read the email with the final agency decision on
December 17, 2018, but it does not contain this information with respect to Complainant’s
attorney.
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practice, including each time wages, benefits, or other compensation is paid,
resulting in whole or part from such a decision or a practice.

Complainant is alleging that the compensation discrimination is ongoing and that he contacted an
EEO Counselor within 45 days of receiving a discriminatory paycheck. Based on the foregoing,
we find that Complainant’s compensation discrimination is timely.

We REVERSE the Agency’s final decision and we REMAND this matter to the Agency for
further processing in accordance with the ORDER below.

ORDER (E0618)

The Agency is ordered to process the remanded claims 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 was issued. 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 was
issued, 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.
As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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
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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 (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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
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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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

August 15, 2019
Date