0120081192-Moorehead
10-15-2009
Paula R. Moorehead, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Paula R. Moorehead,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120081192
Agency No. HS-07-TSA-000824
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the agency's
decision dated November 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.
BACKGROUND
In August 2002, complainant applied for the position of Supervisory
Transportation Security Screener.1 On October 9, 2002, complainant
received an offer of employment for the Transportation Screener Security
(TSS) position. Complainant's hiring date was October 13, 2002 at the
Pay Band D minimum base salary.
On October 20, 2005, complainant filed a suit in the United States
District Court for the Western District of Washington, alleging violation
of Title VII and the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d)
et seq. (identified as Civil Action No. C05-1767). Complainant alleged
that at the same time that she was hired, the agency hired male employees
into the same position as her to perform the same job and duties, but
at a higher salary. Complainant also alleged discrimination based on
her sex when she was removed from the position of Lead Screener on March
27, 2003.
The District Court transferred complainant's Equal Pay Act claim to the
United States Court of Federal Claims (identified as no. 07-654 C).2
On November 8, 2007, complainant filed a two-count amended complaint
in the United States Court of Federal Claims. Count I alleged that
she was hired at a lower starting salary than men in the same position.
Count II alleged that complainant was paid less than men doing the same
job when she held a position supervising other Screeners. Count II
was dismissed by the Court of Federal Claims for lack of jurisdiction,
because complainant asserted the same operative facts and requested the
same relief as complainant claim in District Court. Moorehead v United
States, 81 Fed. Cl. 353 (2008).
The Title VII claims remained in the District Court, where they were
subsequently tried to a jury and verdict was rendered in favor of
defendant. Moorehead v. Chertoff, 2007 WL 737370 (W.D. Wash. March
5, 2007). Pursuant to the Court's Opinion and Order, filed September
3, 2009, the Court of Federal Claims dismissed complainant's Equal
Pay Act claim. After a two-day trial, the Court concludes that any
pay disparities did not violate the Equal Pay Act (identifies as
no. 07-654-C).
On October 16, 2006, after filing a civil action, complainant contacted an
EEO Counselor. Then, she filed a formal EEO complaint on March 6, 2007,
alleging that she was subjected to discrimination on the bases of sex
(female) and in reprisal for prior protected EEO activity when: (1) on or
about October 9, 2002, the Lead and Supervisory Transportation Security
Officer positions to which she applied were offered to male employees; and
(2) on October 9, 2002, management permitted male employees to negotiate
their salaries, even though her request to do so was denied.
On November 9, 2007, the agency issued a Final Agency Decision (FAD)
dismissing complainant's complaint on the ground of untimely EEO Counselor
contact pursuant to 29 C.F.R. � 1614.105(a)(1). The agency found that
complainant knew or should have known about the alleged discrimination in
October 2002 when she was hired as a TSS. However, complainant did not
contact an EEO Counselor until October 16, 2006, beyond the forty-five
(45) day limitation period. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, complaint asserts that on September 10, 11, and 12, 2006, while
reviewing documents related her pending civil action, she discovered for
the first time that in October 2002 male were hired as a Supervisory
Transportation Security Officers when she was denied the position.
She also contends that in September 2006, she also learned for the first
time that in October 2002, males were permitted to provide their prior
pay and salary history to justify a higher starting salary.
In its response to complainant's appeal, the agency reiterated the
arguments that complainant untimely contacted an EEO Counselor. The
agency also alleged that complainant may not pursue this appeal because
she already has an identical complaint pending in federal court.
ANALYSIS AND FINDINGS
The regulation found at 29 C.F.R. � 1614.409 provides that the filing
of a civil action "shall terminate Commission processing of the appeal."
Commission regulations mandate dismissal of the EEO complaint under these
circumstances so as to prevent a complainant from simultaneously pursuing
both administrative and judicial remedies on the same matters, wasting
resources, and creating the potential for inconsistent or conflicting
decisions, and in order to grant due deference to the authority of the
federal district court. See Stromgren v. Department of Veterans Affairs,
EEOC Request No. 05891079 (May 7, 1990); Sandy v. Department of Justice,
EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. USPS, EEOC Request
No. 05880114 (October 25, 1988). On October 20, 2005, complainant filed
a civil action in the United States District Court for the United States
District Court for the Western District of Washington. The record further
discloses that the claims raised therein are the same as those raised in
the instant complaint. Accordingly, complainant's appeal is DISMISSED.
See 29 C.F.R. � 1614.409. Furthermore, we find that claim 1 is barred
by the doctrine of laches.
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 (S0408)
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 (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
October 15, 2009
_______________
Date
1 Complainant had already been working in that position for four months
with a contract security firm named ICTS.
2 On November 8, 2007, complainant filed an amended complaint in the
United States Court of Federal Claims.
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0120081192
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120081192