Randy D. Rostad, Complainant,v.Robert M. Gates, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity CommissionAug 18, 2009
0120092096 (E.E.O.C. Aug. 18, 2009)

0120092096

08-18-2009

Randy D. Rostad, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.


Randy D. Rostad,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense,

(Army & Air Force Exchange Service),

Agency.

Appeal No. 0120092096

Agency No. AAFES09036

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated March 16, 2009, dismissing his complaint of unlawful

employment discrimination in violation of the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his

complaint, complainant alleged that he was subjected to discrimination

on the basis of age (ages 45 to 51 during time of incidents herein) when:

1. Effective April 24, 2003 with the implementation of Market Based Pay

(MBP), complainant's job description and pay did not accurately reflect

his duties and complainant was unable to get his position properly

reviewed and upgraded up to the date of his retirement, effective December

12, 2008.

The agency dismissed the claim for untimely EEO counselor contact,

noting that the alleged discriminatory act occurred on April 24, 2003

but complainant did not contact an EEO counselor until November 6,

2008. We note, however, that the Lilly Ledbetter Fair Pay Act of 2009,

Public Law 111-2 (S 181), became law on January 29, 2009. The Act is

effective May 28, 2007, and applies to all claims of discrimination in

compensation under Title VII, the ADEA, and Title I and Section 503 of

the Americans with Disabilities Act of 1990 and Sections 501 and 504 of

the Rehabilitation Act pending on or after that date. Regarding the ADEA,

it provides:

For purposes of this section, an unlawful practice occurs, with respect

to discrimination in compensation in violation of this Act, when a

discriminatory compensation decision or other practice is adopted,

when a person becomes subject to a discriminatory compensation decision

or other practice, or when a person 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 in part from such a decision or other practice."

Here, complainant contends that the discrimination continued until

he retired, effective December 12, 2008. In view of the fact that

complainant first contacted an EEO counselor on November 6, 2008 and

was receiving allegedly discriminatory paychecks during that period up

to and including the 45 day period prior to his EEO counselor contact,

we find that complainant's counselor contact was timely.

Accordingly, we REVERSE the final agency decision and REMAND the matter

to the agency for further processing consistent with this decision and

Order below.

ORDER

The agency is ordered to reconsider its dismissal of the complaint

in light of the passage of the Lilly Ledbetter Fair Pay Act of 2009,

and either issue a new dismissal decision with appeal rights to the

Commission or an acceptance letter within thirty (30) calendar days of

the date this decision becomes final. Accepted claims shall be processed

in accordance with 29 C.F.R. � 1614.108 et seq., including issuing

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 (K1208)

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 (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

August 18, 2009

__________________

Date

2

0120092096

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092096