0120073561
06-11-2010
Jacqueline D. Allen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Jacqueline D. Allen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120073561
Hearing No. 430-2007-00115X
Agency No. 4K-280-0011-06
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 9, 2007, 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.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq., and the Equal Pay Act of 1963, as amended,
29 U.S.C. � 206(d) et seq. Upon review, the Commission finds that the
Agency erred when it dismissed this complaint pursuant to 29 C.F.R.
� 1614.107(a)(2), for untimely EEO Counselor contact.
BACKGROUND
The record reveals that Complainant was employed as a Mail Piece Design
Analyst in the Fayetteville, North Carolina Processing and Distribution
Center (P&DC). She was asked to voluntarily assume some supervisory
duties at her location. She performed these duties without additional
compensation. In 2003, Complainant argued that she deserved a pay
provision for performing the higher-level work. She challenged this
practice through the EEO process but was told that pay provisions were
not in practice and that there were no provisions in the budget that
would allow payment for higher-level work.
In December 2005, Complainant learned that management had determined
that the Business Mail Entry Unit (BMEU) duties that she was performing
belonged to the Level 17 Supervisor of Customer Services and that that
person would receive a higher-level of pay. Again, Complainant challenged
this through the EEO process. Complainant contends however, that it
was not until July 2006 that she learned that a White male coworker
who had been performing the same type of higher-level work assignment
was being paid for higher-level work, and had also received a higher
pay-bonus percentage.
Complainant filed her formal complaint on September 5, 2006. In the
complaint, she alleged that she was subjected to discrimination on the
bases of race (Black), sex (female), color (black), age (50), and reprisal
for prior protected EEO activity when she became aware that she was not
receiving higher-pay for performing BMEU supervisory duties.
Complainant requested a hearing before an EEOC Administrative Judge (AJ).
The Agency submitted a Motion to Dismiss to the AJ assigned to this case
based on the decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc.,
550 U.S. 618 (2007). The AJ found that Complainant's pay-based claim
fell within the holding of Ledbetter. In that case, the Supreme Court
ruled that a pay-setting decision was a discrete act and the time-limit
to raise such claims begins when the decision is communicated to the
employee. The AJ found that Complainant was fully aware of the Agency's
stance more than six months before she contacted an EEO Counselor on
July 17, 2006. Therefore, the AJ granted the Agency's Motion on June
20, 2007. The Agency fully implemented the AJ's decision and dismissed
the complaint.
On appeal, Complainant acknowledges that she was aware of the pay
inequities that existed with performing higher-level work. She maintains,
however, that during the time she performed the work, she was repeatedly
told by management that there were no provisions in the budget that
would allow her to be paid for performing these duties. She maintains
that she thought this applied to all employees performing higher-level
duties but that in July 2006 she discovered that the Agency's position
had changed and learned that a male coworker was being paid for performing
higher-level work.
In response, the Agency contends that Complainant became aware of the
alleged discriminatory event at the earliest on December 2003, and at the
latest on December 6, 2005, when she was told that she was not going to
receive additional pay for performing BMEU work. The Agency argues that
Complainant did not initiate contact with an EEO Counselor until July
17, 2006, which is, at best, seven months beyond the forty-five (45)
day limitation period. Therefore, the Agency argues that Complainant's
EEO Counselor contact was untimely.
ANALYSIS AND FINDINGS
The standard of review in rendering this appellate decision is de
novo, i.e., the Commission will examine the record and review the
documents, statements, and testimony of record, including any timely
and relevant submissions of the parties, and issue its decision based
on the Commission's own assessment of the record and its interpretation
of the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
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. The
Commission has adopted a "reasonable suspicion" standard (as opposed to a
"supportive facts" standard) to determine when the forty-five (45) day
limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a Complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
Based on a review of the record evidence, the Commission finds that the
Agency erred when it dismissed Complainant's complaint for untimely
EEO Counselor contact. Specifically, we find that Ledbetter is not
controlling in this instance. The evidence reveals that Complainant did
not learn that the Agency's position regarding payment for performing
higher-level duties had changed until July 2006, when she learned
that a male coworker was receiving additional pay for performing
higher-level work. The Commission finds that the discovery of this
information triggered the time limitation for EEO Counselor contact.
The record shows that Complainant learned of this information in July
2006, and contacted an EEO Counselor on July 17, 2006, well within the
45-day time limitation. Therefore, we find that the Agency's dismissal
was improper.
CONCLUSION
Accordingly, the Agency's final order VACATED and the matter is REMANDED
for further processing in accordance with this decision and the Order
below.
ORDER
The complaint is remanded to the agency for further processing. The
Agency shall submit to the Hearings Division of the Charlotte District
Office the request for a hearing and a copy of the complaint file within
fifteen (15) calendar days of the date this decision becomes final. The
Agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the Hearings Division.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M1208)
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 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 (R0408)
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 (Z1008)
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
June 11, 2010
Date
2
0120073561
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013