01a00778
04-28-2000
Lynda G. Otting, Complainant, Rodney E. Slater, Secretary, Department of Transportation, Agency.
Lynda G. Otting, )
Complainant, )
)
) Appeal No. 01A00778
) Agency No. 3-99-3109
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
On October 21, 1999, complainant filed a timely appeal of a September 9,
1999 final agency decision, dismissing her complaint pursuant to Volume
64 Fed. Reg. 37, 644, 37, 656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)), for failure to state a claim.
On August 24, 1999, complainant filed a formal complaint, claiming that
she was the victim of unlawful employment discrimination on the basis of
sex (female) due to the denial of equal pay. Specifically, complainant
claimed that based on her sex, she is �being paid lower wages than a male
employee [cited by name] at the Southern Regional Office, Air Traffic
Division, while performing substantially equal work.� Complainant
alleges further that the agency has used �discriminatory and disparate
methods for staffing specialist positions. . . [which have] benefitted
male employees by allowing them an opportunity to earn substantially
greater salary and retirement annuity.� Complainant maintains that
because of her sex, she was not afforded similar benefits.
In its final decision, the agency dismissed complainant's complaint
for failure to state a claim. The agency determined that complainant's
complaint was comprised of the claim that the agency used discriminatory
and disparate methods for staffing specialist positions in the Southern
Regional Office, Air Traffic Division, that resulted in her receiving a
lower rate of pay than a male co-worker performing substantially equal
work. The agency further determined that on October 1, 1998, a pay plan
was implemented for certain air traffic positions and other employees in
specific geographic areas. The agency indicated in its final decision,
that all employees, including complainant were not included in the new
pay plan. As such, the agency found that complainant was not aggrieved
since the identified adverse action was a generalized grievance shared
by all of complainant's co-workers.
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.103) provides that
individual and class complaints of employment discrimination prohibited
by Title VII (discrimination on the bases of race, color, religion, sex,
and national origin), the ADEA (discrimination on the basis of age when
the aggrieved individual is at least 40 years of age), the Rehabilitation
Act (discrimination on the basis of disability), and the Equal Pay Act
(sex based wage discrimination) shall be processed in accordance with
Part 1614 of the EEOC Regulations.
The only proper questions in determining whether a claim is within the
purview of the EEO process are (1) whether the complainant is an aggrieved
employee and (2) whether she has alleged employment discrimination
covered by the EEO statues. An employee is �aggrieved� if she has
suffered direct and personal deprivation at the hands of the employer.
See Hobson v. Department of the Navy, EEOC Request No. 05891133 (March
2, 1990). Here, complainant claimed she receives less pay than a male
employee who performs substantially similar work. Complainant's claim
is sufficient to render her an aggrieved employee. Because complainant
has claimed that the adverse action was based on her status as a female
employee who receives less pay than a similarly situated male employee,
she has raised a claim within the purview of the EEOC regulations.
With regard to the reasons articulated by the agency in its final decision
for finding that complainant was not aggrieved, we find that the agency
has stated a reason that goes to the merits of complainant's complaint,
and is irrelevant to the procedural issue of whether she has stated a
justiciable claim. See Ferrazzoli v. USPS, EEOC Request No. 05910642
(August 15, 1991).
Accordingly, the agency's decision dismissing complainant's complaint
for failure to state a claim is REVERSED. The complain is REMANDED to
the agency for further processing in accordance with this decision and
applicable regulations.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
April 28, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations