0120101184
06-22-2010
Jeanne Freeman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Jeanne Freeman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120101184
Agency No. 4E640010209
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated December 22, 2009, 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
In her complaint, Complainant alleged that the Agency subjected her
to discrimination based on her sex (female), disability, and age (49)
when from June 6, 2009 to September 11, 2009, she was paid at the annual
rate of $52,526 ($25.25 hourly), instead of an annual rate of $52,729
($25.35 hourly), resulting in a total underpayment of about $56.00.
Complainant, a Rehabilitation Modified Mail Handler, was reassigned
effective June 6, 2009, because she worked at a facility which closed.
She was reassigned with a saved annual pay rate of $52,729. This rate
was documented in her reassignment notice and a Notification of Personnel
Action. Complainant contends that while she had a saved rate, she was
actually paid at the annual rate of $52,526 from June 6, 2009 to September
11, 2009, until her pay was restored to the proper rate thereafter.
The Agency dismissed the complaint for failure to state a claim,
finding that Complainant was not aggrieved. It also dismissed the
complaint for failure to timely initiate EEO counseling. Finding that
the discriminatory action occurred on June 6, 2009, the agency determined
that Complainant's EEO contact of August 20, 2009, was beyond the 45
calendar day time limit.
Complainant suggested that she was not aware that she was being subjected
to discrimination until August 5, 2009. Specifically, she contended
that after noticing the lowered payment on her June 26, 2009, paycheck,
she started calling agency officials to inquire. Complainant got through
to identified agency officials on July 9, 2009 and July 27, 2009, who
allegedly responded the problem would be fixed. Complainant stated
that when she called again on August 5, 2009, because the problem was
not fixed, she was told that she no longer had the saved rate and her
paycheck was correct.
CONTENTIONS ON APPEAL
Complainant recounts matters described above. In opposition to the
appeal, the Agency summarily argues that Complainant did not prove
discrimination.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. ��
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). Applying this regulation, we find
that Complainant's complaint states a claim. Complainant is alleging
a discriminatory diminution of her wages, which constitutes a loss with
respect to a term of her employment for which there is a remedy.
The crux of Complainant's formal complaint is that she is being subjected
to unlawful compensation discrimination and is seeking back pay. The
Agency's dismissal on the grounds of untimely EEO Counselor contact is
improper. 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.
Applying the above statute, we find Complainant timely initiated contact
with an EEO counselor.1 In opposition to the appeal, the Agency argues
that Complainant did not prove discrimination. Since there has been
no investigation, it is premature to make a determination on whether
discrimination occurred.
The agency's final decision is REVERSED.
ORDER
The Agency is ordered to process the remanded claim that she was subjected
to discrimination based on her sex (female), disability, and age (49)
when from June 6, 2009 to September 11, 2009, she was paid at the annual
rate of $52,526 ($25.25 hourly), instead of an annual rate of $52,729
($25.35 hourly), resulting in a total underpayment of about $56.00,
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.
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 (R0610)
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 (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
June 22, 2010
__________________
Date
1 Even in the absence of the Lilly Ledbetter Fair Pay Act of 2009, we
would find Complainant timely initiated EEO counselor for the entire
period she is alleging a discriminatory diminution of wages since she
did not have a reasonable suspicion of discrimination until August 5,
2009, and contacted an EEO counselor on August 20, 2009. 29 C.F.R. �
1614.105(a)(1) & .(a)(2).
??
??
??
??
2
0120101184
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101184