0120142951
02-04-2015
Complainant, v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120142951
Agency No. TVA-2014-0034
DECISION
On August 18, 2014, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated July 29, 2014, 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., the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant first worked as a Senior Instrument Mechanic and later as a Maintenance Test Equipment (MTE) Instruments Technician at the Agency's Sequoyah Nuclear Plant in Soddy-Daisy, Tennessee.
On April 15, 2014, Complainant filed an equal employment opportunity (EEO) complaint alleging that he was discriminated against based on his age (52) and disability when:
1. On or about September 1, 2012, he learned that he was denied increased pay to perform pre-outage duties for the Ready-Ready work assignment for the upcoming outage due to start in October 2012;
2. On February 20, 2013, he was given an improper medical restriction by the Agency, and management suggested he talk to Agency retirement services; and
he was discriminated against on the above bases and sex (male) when:
3. On February 28, 2013, management gave him three options: a) termination, b) disability retirement, or c) accept a demotion, and he was forced to choose a demotion since he could not afford disability retirement or termination; and
4. Upon taking the demotion to the position of MTE Instruments Technician effective March 11, 2013, he performed the same duties as others who maintained the Senior Instrument Mechanic title and pay, so he was entitled to higher pay.1
The Agency dismissed the complaint for failure to timely initiate claim EEO counseling. It reasoned that he initiated EEO counseling on February 7, 2014, beyond the 45 day time limit to do so. While the Agency conceded that Complainant previously initiated EEO counseling (on issues 2 and 3), it found that he withdrew this counseling request.
ANALYSIS AND FINDINGS
By email on March 4, 2013, Complainant initiated EEO contact with EEO Counselor 1. He raised issues 2 and 3, and referred to the facts in issue 4. On March 8, 2013, Complainant accepted a demotion to the position of MTE Instruments Technician.
On March 14, 2013, Complainant sent an email to EEO counselor 1 asking why his "EEO complaint" was dropped. By email reply the same day EEO Counselor 1 quoted language that if you file a formal EEO complaint you may not file a union grievance on the same matter, but may still engage in the informal EEO complaint process while pursuing the union grievance. She then explained to Complainant that since he filed a union grievance, he "cannot file a formal complaint" on this same issue. She advised Complainant that if he contended the grievance was not finalized, he could continue the informal EEO process. The grievance was filed on March 6, 2013.2
By email later in the day on March 14, 2014, EEO counselor 2 asked Complainant if he was still choosing to pursue EEO counseling. On March 15, 2013, Complainant replied, with a copy to EEO Counselor 1, that he would like to continue the EEO process, would be available to meet and complete all forms needed for the process, and understood he must complete the EEO process before filing an EEO complaint.
On the same day, EEO Counselor 2 responded to Complainant that based on their discussion she was continuing as agreed. She added that Complainant requested the matter not be an open EEO Counseling case but an inquiry only. She instructed Complainant that if the issue was not resolved to contact her within 45-calendar days from March 15, 2013, to officially start EEO counseling, if he deemed necessary.
On April 14, 2013, Complainant wrote EEO Counselor 2 that his grievance was denied by the Plant Manager, there were no pending grievances, and he believed this was no longer an EEO concern but more of an Office of Inspector General (OIG) matter. He thanked her for her time and assistance.
On February 7, 2014, Complainant reinitiated contact with an EEO counselor. He wrote that on February 7, 2014, his union representative notified him that the union would no longer pursue his grievance. By email to EEO Counselor 2 on February 26, 2014, Complainant explained that "I did file the original complaint with [EEO counselor 1] and it was stopped by her at that time, because the grievance process was ongoing. That was my understanding of the email she had sent me and that I forwarded to you...." The record suggests the referenced email refers to EEO Counselor 1's email of March 14, 2013.
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2). This time limit is subject to waiver, estoppel and equitable tolling. 29 C.F.R. � 1614.604(c).
Here, on March 14, 2013, EEO Counselor 1 advised Complainant that because he filed a union grievance, he "cannot file a formal complaint" on this same issue. This was incorrect advice.3 While both EEO counselor 1 and 2 advised Complainant that he could continue with the informal EEO process, the record does not show that they ever explicitly advised him he could file a formal complaint. This advice that the Agency gave was confusing, and likely tainted Complainant's view of his EEO rights, explaining his de-emphasizing EEO thereafter. In explaining why he waited until February 7, 2014, sometime after his grievance reached a dead end, to reinitiate EEO counseling, Complainant pointed to EEO Counselor 1's advice. Given her advice we accept Complainant's account, even in light of the various communications between Complainant and Counselors 1 and 2 recounted in this decision. Accordingly, we find that the Agency is estopped from finding that Complainant withdrew his March 4, 2013, EEO contact.
We find that Complainant initiated contact with an EEO counselor on issues 2, 3 and 4 on March 4, 2013. Accordingly, these issues were timely raised with an EEO counselor.
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. Issue 4 is also timely under the Lilly Ledbetter Fair Pay Act.
We agree with the Agency that Complainant failed to timely initiate EEO counseling regarding issue 1. He raised issue 1 with a counselor for the first time on February 7, 2014, beyond the 45 calendar day time limit.
In opposition to Complainant's appeal, in a footnote, the Agency cites to EEOC cases that rule that where a Complainant files a grievance through the negotiated grievance procedure before he files an EEO complaint on the same matter, he has elected the grievance forum, making the formal complaint subject to dismissal. The Agency did not dismiss any portion of the complaint on this ground, nor does it explicitly argue on appeal for a dismissal on this ground. Because the Agency is not covered by 5 U.S.C. � 7121(d), filing of a grievance does not constitute an election to proceed in that forum, and not the EEO forum. 29 C.F.R. � 1614.301; Sammons v. Tennessee Valley Authority, EEOC Appeal No. 01A55142 (Dec. 16, 2005). Further, the record does not contain a copy of a collective bargaining agreement. Accordingly, we cannot discern whether allegations of discrimination can be raised therein, another requirement for an election to be made. 29 C.F.R. � 1614.301.
The Agency's dismissal of issues 2, 3, and 4, as numbered herein, is REVERSED. Its dismissal of issue 1, as numbered herein, is AFFIRMED.
ORDER
The Agency is ordered to process issues 2, 3, and 4, as numbered herein, 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 (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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408)
You are authorized under section 16(b) of the Fair Labor Standards Act (29 U.S.C. � 216(b)) to file a civil action in a court of competent jurisdiction within two years or, if the violation is willful, three years of the date of the alleged violation of the Equal Pay Act regardless of whether you have pursued any administrative complaint processing. The filing of the 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
February 4, 2015
__________________
Date
1We find that Complainant raised issue 4 as part of his complaint. See Correspondence File, at 4, 52, 67 (complaint at remedy section), 73 - 74. The Agency failed to capture this issue. Complainant compared himself to three female Senior Instrument Mechanics, since retired, who did not perform field work and a male Senior Instrument Mechanic at the Browns Ferry Nuclear Plant.
2On March 8, 2013, a supervisor denied the grievance, and it was denied again by the Sequoyah Nuclear Plant Manager on April 12, 2013. The grievance was denied again by the Agency's Senior Manager, Labor Relations, on October 22, 2013. By this time the Senior Manager characterized the grievance as regarding management violating the "General Agreement" when the Agency placed additional medical restrictions on Complainant resulting in him incurring medical expenses and being placed in another position at lower pay. The medical expenses referred to Complainant paying for an examination in an attempt to show he met the medical standards for his job.
3A complainant should not be advised that he cannot file a complaint. Rather, he can be advised of the regulations. If he chooses to file a complaint which the Agency finds is subject to dismissal, it should dismiss the complaint with appeal rights to the EEOC. In any event, as explained below, Complainant was not subject to the election requirement (subjecting a formal complaint to dismissal if it is filed after a union grievance).
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0120142951
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120142951