0120141727
01-05-2016
Rayford H.,1 Complainant, v. Penny Pritzker, Secretary, Department of Commerce (Bureau of the Census), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rayford H.,1
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 0120141727
Agency No. 63-2014-00060
DECISION
Complainant filed a timely appeal with this Commission from the Agency's April 2, 2014 decision, dismissing his 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Space Leasing Specialist at the Agency's Philadelphia Regional Office, U.S. Census Bureau, in Philadelphia, Pennsylvania.
On January 15, 2014, Complainant contacted an EEO Counselor. On February 22, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (African-American) when Complainant received lower compensation during his term appointment, which ended on October 24, 2010.
Complainant is an African-American. Management was aware of his race.
Complainant was hired in September 2008 at the GS-9 level. Complainant complained to management that he was being paid less and given more projects to manage than the other Space Leasing Management Specialists. Complainant participated in pre-complaint counseling on February 25, 2010, but he withdrew from the process, without filing an EEO complaint. When his term appointment expired on October 24, 2010, Complainant was receiving a GS-12 salary. The Agency later reemployed Complainant, as a Field Supervisor at the GS-7 level, from August 20, 2012 to July 26, 2013.
The Agency issued a final decision dismissing the complaint for untimely EEO contact, stating that the events alleged by Complainant occurred more than 45 days prior to his initial EEO counselor contact. The Agency reasoned that Complainant was aware of the regulatory limitations period for contacting an EEO Counselor since Complainant previously participated in the pre-complaint process in 2010. The Agency concluded that Complainant "could have brought his concerns regarding discriminatory compensation at that time [2010], but he failed to do so."
The instant appeal followed.
ANALYSIS AND FINDINGS
Timeliness of Claims
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that the complaint 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 45 days of the effective date of the action.
The complaint alleges disparate treatment with regard to compensation and assignments. The record discloses that the first alleged discriminatory event occurred in 2009, when Complainant became aware that he was receiving lower pay than his Caucasian co-workers, or, at the latest, when he was reemployed on August 20, 2012 at a lower [GS-7] level. Complainant did not initiate contact with an EEO Counselor until January 16, 2014, which is beyond the forty-five (45) day limitation period.
Complainant did not provide a brief on appeal.
We recognize that, because Complainant had initiated the pre-complaint process before, he should have been aware of the 45-day filing requirement. Our review of the record revealed no evidence warranting an extension of the time limit for initiating EEO Counselor contact.
In this case, we find that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 5, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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