0120160939
05-06-2016
Enola B.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Enola B.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120160939
Agency No. 20030586201504760
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 19, 2016, dismissing her 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. and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et. seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a RN CFU Clinical Coordinator at the Agency's G.V. "Sonny" Montgomery VA Medical Center facility in Jackson, Mississippi.
On July 24, 2015, Complainant contacted an EEO Counselor and raised a salary determination claim which originated on or before March 6, 2015. On November 16, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability (Physical), age (56) and "Equal Pay and Allowance Determination" when:
1. On or about March 2, 2015 or March 6, 2015, Complainant learned that she was not being paid in accordance with the medical center's nursing pay guidelines; and
2. From 2012 to the present, the Agency failed to select her for 25 positions for which she applied.
The EEO Counselor's Report shows that Complainant raised a single pay disparity issue. She did not dispute the EEO Counselor's statement of her claim.
The Agency dismissed the complaint on the grounds that Complainant failed to initiate EEO Counselor contact within 45 days of when she became aware of the effective date of the disputed wage determination. The Agency determined that the most recent non selection claim happened 63 days beyond the 45-day limit. The Agency reasoned that Complainant was familiar with the EEO process through her extensive training. Then, the Agency determined that the new non-selection claims were not like or related to the one matter that Complaint brought to the attention of the EEO counselor.
This appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
In this case, the record discloses that the alleged discriminatory pay disparity event occurred on March 2, 2015, but Complainant did not initiate contact with an EEO Counselor until July 24, 2015, according to Complainant, which is beyond the forty-five (45) day limitation period.
We find that Complainant failed to make timely EEO contact with regard to her pay disparity claim. She was informed that her salary was lower than the salary received by her peers no later than March 6, 2015. The salary was set by the Nurse Professional Standards Board (NPSB). From January 12, 2014 to February 20, 2014, Complainant's packet was resubmitted, but her application was still missing documentation. She claims that she was harmed by the NPS Board's rating of her which resulted in a lower salary than her peers, because the Board rated her zero points for qualifications based on the information in her application. The Chairperson was dissatisfied with Complainant's written documentation of her qualifications. Complainant compares herself to other peers and alleged that the Agency failed to pay her according to the Agency's pay guidelines. On or about February 20, 2014, Complainant accepted the third salary offer made to her, although she believed, then, that the salary was too low. It is undisputed that the salary differential was based on the value placed on her qualifications by the NPSB. There is no allegation that the NPSB determination was age-based or selectively applied based on disability.
Moreover, although Complainant used the term "Equal Pay," she does not assert an Equal Pay Act claim, because she is not alleging that she was paid less for doing substantially similar work to the work performed by her male colleagues.
On appeal, Complainant argues that she was unaware of the EEO time limit and which agency had EEO jurisdiction. She states that she was on leave from January 2015 through March 2015 and did not discover the pay disparity until she returned from leave in March of 2015. Complainant stated that she was unaware of which agency had jurisdiction over her claims due to an employment change from the initial hiring agency in Jackson Mississippi to the Chief Business Office Purchase Care in Denver, Colorado. She says her filing was timely, if calculated from the time she learned the correct filing information.
In addition, Complainant raised 25 new non-selection claims in her complaint. The non-selections were alleged to have occurred "from January 14, 2012 to the present." The Agency maintains that those claims were not brought to the attention of the EEO Counselor. Each one is a discrete action.
She alleged that she was not rehired when she reapplied for her term position under vacancy announcement number OY-15-GFM-1417451-BU on June 17, 2015. She claims that she contacted the EEO counselor via a phone communication, but he was not available. The last claim identified was for the Clinical Reviewer position, Vacancy Announcement Number 07-15-GFM-1417451-BU, occurred on July 31, 2015. She did not raise this claim, however, until she filed her complaint in November of 2015. If, as the Agency states that Complainant made contact on August 6, 2015, the record indicates that she only made contact with regard to the pay discrimination claim. Consequently, Complainant's subsequent EEO counselor contact in November 2015 was not timely made from any of the non-selection events she proffers as examples of discrimination.
Moreover, we find that she has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact regarding the pay disparity claim or the non-selections issues. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
May 6, 2016
__________________
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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