01a60674
03-07-2005
Cheryl Baughn, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Cheryl Baughn v. Department of Veterans Affairs
01A60674
April 13, 2006
.
Cheryl Baughn,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A60674
Agency No. 2004-0590-2005102870
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated September 29, 2005, dismissing her formal EEO
complaint of unlawful employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
On June 10, 2005, complainant initiated EEO Counselor. Informal efforts
to resolve her concerns were unsuccessful. In her formal complaint
filed on August 1, 2005, complainant alleged that she was subjected to
discrimination on the basis of disability.
In its final decision dated September 29, 2005, the agency determined
that complainant's complaint was comprised of the following claims:
A) Whether on the basis of disability (physical), the complainant...was
subjected to disparate treatment because
1. Effective March 20, 2005, the complainant is being paid as a GS-2/10
and is required to perform �complex� GS-6 level work, wherein the student
interns are paid at the GS-5 level.
2. February 6, 2005-ongoing: the complainant's GS-2 rating (due to
accommodation), resulted in a reduction of her cost of living (COLA)
benefits, and impacted her retirement benefits.
The agency dismissed complainant's complaint for failure to state a claim.
Specifically, the agency stated that �complainant accepted a light duty
assignment (Clerk, GS 2/10) on March 9, 2005 with pay retention authorized
by the Office of Worker Compensation (OWCP), due to accommodation of an
on-the-job injury....Further processing of this claim would constitute a
collateral attack on the OWCP process...� The agency further asserted
that complainant's �salary, grade, and duties� are solely within the
province of the Department of Labor.
On appeal, complainant, through her attorney, asserts that the agency's
final decision dismissing her formal EEO complaint is improper.
Specifically, complainant's attorney asserts that �[c]omplainant's
objection, and the basis of her complaint, is that she is being paid less
and carried at a lower grade for doing the same work.� In addition,
complainant's attorney states that the agency has not offered evidence
that complainant's complaint involves a determination by the OWCP.
In response, the agency requests that we affirm its final decision
dismissing complainant's complaint. The agency reiterates that
complainant's complaint is a collateral attack on the OWCP process.
In addition, for the first time, the agency asserts that complainant's
complaint should also be dismissed on other grounds, such as untimely EEO
Counselor contact. Specifically, the agency states that complainant was
offered the subject position on March 7, 2005, she accepted it on March 9,
2005, and assumed the duties of the subject position on March 20, 2005.
The agency, therefore, asserts that complainant should have contacted an
EEO Counselor before May 4, 2005. Furthermore, the agency also asserts
that complainant has been in pay retention status since assuming the
subject position, and therefore complainant is not aggrieved.
Dismissal for Failure to State a Claim
Upon review of the record, we find that the agency improperly dismissed
complainant's complaint for failure to state a claim. The crux of
complainant's complaint is that she is being paid less for performing the
same work as other employees outside of her protected class. The record
contains a copy of complainant's formal complaint. Therein, complainant
states, in pertinent part, that �I am performing the duties of a employee
of a higher grade and getting paid at a lower grade and step because of
my disability.�
The agency asserts that complainant's complaint is a collateral attack
on the OWCP process. However, the Commission is unpersuaded by this
assertion. The record does not reflect that complainant is challenging
a determination made by OWCP or the processing of an OWCP claim.<1>
The only questions for an agency to consider in determining whether a
complaint states a claim are: (1) whether complainant is an aggrieved
employee; and (2) whether complainant raises employment discrimination
on a basis covered by EEO statutes. If these questions are answered
in the affirmative, an agency must accept the complaint for processing
regardless of its judgment of the merits. See Odoski v. Department
of Energy, EEOC Appeal No. 01901496 (April 16, 1990). In the instant
matter, complainant is alleging that she is being paid less because of
her disability; thus, she has stated a cognizable claim.
While the agency asserts, in its response to complainant's appeal, that
complainant is not aggrieved because she has been in pay retention status
and is receiving GS-5, Step 3 pay since assuming the subject position,
a review of the record reflects that complainant was informed by the
Human Resources Manager (HR1) via memorandum dated March 7, 2005, that
her assignment to the subject position would have financial implications.
Specifically, HR1 stated that �as you are at the top of the GS-2, you
are not eligible for within-grade increases' and �as long as your pay
is higher than the top step of the GS-2 you will receive only 50 percent
of each cost of living increase for the top step of the GS-2 position.�
Based on these circumstances, we find that complainant has set forth an
actionable claim.
Dismissal for Untimely EEO Counselor Contact
The Commission also finds that the agency's argument for the first time on
appal, that the instant complaint should be dismissed on the alternative
grounds of untimely EEO Counselor contact is improper. The Commission
notes that complainant's purported untimely EEO Counselor contact was
not identified as a grounds for dismissal in the agency's final decision.
However, even if the agency had identified untimely EEO Counselor
contact as a grounds for dismissal in its final decision, such dismissal
would have been improper. In its response to complainant's appeal,
the agency argues that complainant should have initiated EEO Counselor
contact within 45 days of assuming the duties of the subject position.
However, �[r]epeated occurrences of the same discriminatory employment
action, such as discriminatory paychecks, can be challenged as long as
one discriminatory act occurred with the charge filing period.� See
EEOC Compliance Manual, Section 2, Threshold Issues, at 2-73 (revised
July 21, 2005) (citing Bazemore v. Friday, 478 U.S. 385, 395-96 (1986)).
Because complainant contacted an EEO Counselor within 45 days of receiving
a paycheck, her claim is timely.
Accordingly, we REVERSE the agency's final decision dismissing
complainant's complaint and we REMAND this matter to the agency in
accordance with the ORDER below.
ORDER (E0900)
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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (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 (R0900)
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 (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
April 13 ,2006
__________________
Date
1The Commission notes that the record
contains a letter to complainant from the agency dated March 7, 2005,
offering complainant the subject position and informing her of the
financial implications associated with the subject position.