0120182365
09-20-2018
Beryl B.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (Patent and Trademark Office), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Beryl B.,1
Complainant,
v.
Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.
Appeal No. 0120182365
Agency No. 18-56-22
DECISION
On July 5, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated June 4, 2018, 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 was employed by the Agency as a Legal Instruments Examiner, GS-0963-07 at the Office of Patent Examination Support Services in Alexandria, Virginia.
On April 4, 2018, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against her based on her race (African-American), sex (female), and age (40 and over starting in 2005) when from 1997 to the present, she was paid less than comparative employees for substantially similar work.
Complainant relayed to the EEO counselor that since at least 1997, her position has been misclassified as GS-7 rather than GS-9, that her position description does not accurately reflect the complexity or level of independent judgment required of her work, and her position is at least as complex as employees in other positions graded GS-9/11.
The Agency dismissed the complaint for stating the same claim in two prior complaints. Specifically, the Agency referred to complaint 16-56-37 (Complaint 1), which Complainant filed in May 2016, and to complaint 17-56-12 (Complaint 2), which she filed in December 2016. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) requires that an Agency dismiss an entire complaint that is pending before or has been decided by the agency or the Commission.
In July 2016, the Agency accepted the part of Complaint 1 for investigation that alleged Complainant was discriminated against based on her race and age when (1) from 2000 onward, the Agency regularly eliminated duties she performed and assigned them to higher graded employees in different jobs causing her positon not to be upgraded, and (2) on January 19, 2016, she learned through a Freedom of Information Act disclosure that the position description for her job inaccurately described her duties, causing her position not to be upgraded. The Agency investigated these claims, and Complainant requested a hearing. On September 10, 2018, on summary judgment, an Equal Employment Opportunity Commission Administrative Judge (AJ) issued a decision finding no discrimination. The AJ wrote that Complainant was challenging the classification of the whole Legal Instruments Examiner series and argued that most employees in this positon are African-American, and women. The AJ found that while high percentages of Legal Instruments Examiners identify as African-American (89.6%), women (74%), and more than 99% are age 40 and over, standing alone this not show the Agency's explanation for Complainant's grade - it is based on the actual duties - is pretext for unlawful discrimination.
In December 2016, the Agency issued a FAD dismissing Complaint 2 for stating the same claims as the accepted claims in Complaint 1. In the FAD, the Agency recounted the claims in Complaint 2, the first two of which contained identical wording to the accepted claims in Complaint 1. The third recounted issue in Complaint 2 also regarded the misclassification of her grade as GS-7 as not reflective of the work she performed. Complainant did not appeal this FAD.
Complainant argues on appeal that the complaint before us is not identical to Complaints 1 and 2 because she is now alleging that the Agency violated the Equal Pay Act. She argues that while she alleged in Complaints 1 and 2 that the Agency violated Title VII when it misclassified her job and moved some of her duties to higher graded employees resulting in her position not being upgraded, she is now alleging that from 1997 onward she is has been paid less than male employees (in other positions) who perform substantially similar work.
While we recognize that Complainant now raises a different theory of discrimination, we agree with the Agency that the complaint before us states the same claim that were stated in Complaints 1 and 2 - that she is discriminatorily underpaid. Doleshal v. Department of Health and Human Services, EEOC Appeal No. 01A40020 (July 29, 2004) (affirming dismissal of second complaint which challenged promotion of female comparator under the Equal Pay Act because the previous complaint alleged discriminatory non-selection based on race, color, age, and reprisal).
The FAD is AFFIRMED.
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 (S0610)
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 (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
September 20, 2018
__________________
Date
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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