0120121709
07-11-2012
Glenda Davidson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Glenda Davidson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121709
Agency No. 200P06912012100112
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated February 2, 2012, 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 worked as a Management and Program Analyst at the Agency's Medical Center facility in West Los Angeles, California. On November 8, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), and color (Black) when:
1. Since 1999 Complainant has been working 10 - 12 hour days and working on weekends and was only given 75 hours of compensatory time, but on or about September 28, 2011, Complainant learned that a male colleague was allowed to claim compensatory time every day for over a year.
The Agency dismissed the claim for failure to state a claim. Specifically, the Agency found that Complainant's claim consisted of an allegation of a violation of the Fair Labor Standards Act which is not an Act enforced by the EEOC.
CONTENTIONS ON APPEAL
Complainant makes no new argument on appeal and the Agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
The Agency found that Complainant was arguing that she was not paid for work she had performed, and that such a claim constituted a Fair Labor Standards Act claim which the EEOC does not enforce. The Agency further argues that if Complainant had alleged that she had requested compensatory time but it had been denied, that would state a valid claim of denial of compensatory time. However because Complainant never requested compensatory time, the Agency argues, it was never denied her and she therefore cannot claim she was subjected to an adverse action.
Following a review of the record, we disagree with the Agency's findings. Instead we find that Complainant has stated a claim under the Equal Pay Act. The U.S. Supreme Court articulated the requirements for establishing a prima facie case of discrimination under the EPA in Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). To establish a violation of the EPA, a complainant must show that she or he received less pay than an individual of the opposite gender for equal work, requiring equal skill, effort and responsibility, under similar working conditions within the same establishment. Id. at 195; Sheppard v. Equal Employment Opportunity Commission, EEOC Appeal No. 01A02919 (September 12, 2000); see also 29 C.F.R. �1620.14(a). The complainant does not have to show that she and her comparators held their jobs at the same time. See 29 C.F.R. �1620.13(b); Equal Employment Opportunity Commission v. First Citizen's Bank, 758 F.2d. 397, 402 (1985). In her Formal Complainant, Complainant specifically states that "I realize that non-payment of overtime/comp time is an Unfair Labor Practice. I could live with [that]." Complainant further explains that "what is even more disturbing" is the fact that a male coworker at the same level as herself was allowed to claim compensatory time "every day for a year." Complainant is thus alleging that a male coworker was granted compensatory time while she was not. Such an allegation clearly states a claim under the EPA. Accordingly, the agency's final decision dismissing complainant's complaint is REVERSED, and the claim is hereby REMANDED to the agency for processing in accordance with the Order set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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.
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 (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 (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
July 11, 2012
__________________
Date
2
0120121709
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121709