0120081945
11-02-2009
Robert D. Aaron, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Robert D. Aaron,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120081945
Agency No. ARMYER07AUG02873
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated December 17, 2007, dismissing his formal 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of the events at issue, complainant was employed by the agency
as a Senior Analyst at the Army Test and Evaluation Command in Alexandria,
Virginia. On June 25, 2007, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
On September 11, 2007, complainant filed the instant formal complaint.
A fair reading of that complaint reveals that complainant alleged that
he was subjected to discrimination on the bases of race (Caucasian), sex
(male), religion, color (white), disability (hearing loss), age (55),
and in reprisal for prior protected activity when:
a. starting in 2002, he has been denied pay increases equivalent to his
peers under the Contribution-based Compensation and Appraisal System
(CCAS);
b. in 2006, the Management Employee Relations Program Manager, Army Test
and Evaluation Commend (ATEC) was asked to complete an inappropriate
"Alpha letter"1 on complainant ;
c. he has been subjected to retaliation for submitting appeals of his CCAS
contribution assessments by, in effect, having his salary reduced; and
d. he suffered a retaliatory hostile work environment when he was moved
from an office to a cubicle in late 2004.
In its December 17, 2007 final decision, the agency dismissed
complainant's formal complaint on the grounds of untimely EEO Counselor
contact, pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically, the agency
indicated that the most recent alleged discriminatory event occurred in
January 2007 (a 2006 CSAS payout) but that complainant did not initiate
EEO Counselor contact until June 2007, which was beyond the requisite
forty-five (45) limitation period.
On appeal, complainant argues that his EEO contact was timely.
Specifically, complainant argues "the event that gave rise to my
initiating EEO informal complaint is the ATEC [Army Test and Evaluation
Command] Commanding General providing me his decision in a letter, dated
20 June 2007. The General's letter states that the position 'had the
potential to proceed to the GS-15, step 10 level.' This is the event on
20 June 2008, when the discrimination was known, confirmed and factual.
His position contradicted what I hav[e] been told by management officials
since 2002."
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 Title VII, it provides:
[A]n 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
in part from such a decision or other practice . . . [Relief may include]
recovery of back pay for up to two years preceding the filing of the
charge, where the unlawful employment practices that have occurred during
the charge filing period are similar or related to unlawful employment
practices with regard to discrimination in compensation that occurred
outside the time for filing a charge.
Here, a fair reading of the claims in complainant's formal complaint is
that he continues to be denied pay increases equivalent to his peers
based on discriminatory factors, and has been retaliated against for
protesting this fact. Because the agency issued its dismissal decision
in December 2007, before the passage of the Lilly Ledbetter Fair Pay Act,
we are vacating the agency's dismissal and remanding the complaint for
consideration of the implications of that Act on this case. Moreover,
we determine that in the interest of judicial efficiency, complainant's
entire complaint should be remanded, intact, without fragmenting its
component allegations.
Accordingly, we VACATE 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 formal 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.
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
November 2, 2009
__________________
Date
1 It appears from the record that an "Alpha" letter is prepared by
the agency's Personnel office to indicate that an employee is being
over-compensated in his position. This presumably has some effect on
the decision-making of the CCAS pay pool panel.
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0120081945
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120081945