Sharonda M.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Jun 8, 2016

0520160181 (E.E.O.C. Jun. 8, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Sharonda M.,1
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Request No. 0520160181

Appeal No. 0120160188

Agency No. FBI-2015-00316

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested reconsideration of the decision in EEOC Appeal No. 0120160188
(January 21, 2016). EEOC Regulations provide that the Commission may, in its discretion,
grant a request to reconsider any previous Commission decision where the requesting party
demonstrates 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. See 29 C.F.R. § 1614.405(c).

Complainant initiated EEO Counselor contact on August 25, 2014. Complainant alleged the
Agency subjected her to discrimination on the basis of sex (female/pregnancy) when:

1. On October 21, 2012, Complainant did not receive a promotion to the GS-13 level,
even though she was otherwise eligible, because she did not receive a Performance
Appraisal Report (PAR).

2. Complainant did not receive a Foreign Language Incentive Program (FLIP) Award
in 2012, because not receiving her PAR rendered her ineligible.
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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In our previous decision, we reversed the Agency’s dismissal of claim (1), regarding the GS-
13 promotion. Specifically, the Commission noted that Complainant asserted that she
eventually received the GS-13 promotion on July 13, 2014. However, Complainant stated that
the Agency’s delay resulted in her being owed back pay and that she should be two steps ahead
on the pay scale due to the Agency’s delay in processing her promotion. Thus, the
Commission found Complainant was alleging ongoing pay discrimination with each paycheck
she received. The Commission determined Complainant’s initial EEO Counselor contact
concerning the promotion claim was timely raised. In addition, the Commission affirmed the
Agency’s dismissal of claim (2) for untimely EEO Counselor contact.

In its request for reconsideration, the Agency notes that it is not requesting reconsideration of
the Commission’s decision affirming claim (2). However, the Agency argues that the
Commission improperly reversed its dismissal of claim (1). Specifically, the Agency claims
that the Commission and every Court of Appeals examining the applicability of the Fair Pay
Act to discrete employment decisions, specifically, including failure-to-promote claims, has
concluded that the Fair Pay Act does not apply and cannot be used to extend the time limit for
initiating EEO contact or filing a claim.

In response to the Agency’s request for reconsideration, Complainant claims her case is about
a loss of compensation because she was denied promotion to the General Schedule.
Complainant explains she was denied a PAR in 2012, due to her pregnancy, and she was
therefore not granted a timely promotion to the next GS pay level. Complainant argues her GS
level “promotion” was solely a compensation decision.

We find the Commission properly found that claim (1) was timely due to the Lilly Ledbetter
Fair Pay Act of 2009, Pub. L. No. 111-2, 123, Stat 5 (“the Act”). The Act applies to all
claims of discrimination in compensation, pending on or after May 28, 2007, under Title VII,
the Age Discrimination in Employment Act of 1967, Title 1 and Section 503 of the Americans
with Disabilities Act of 1990, and Sections 501 and 504 of the Rehabilitation Act of 1973.
With respect to Title VII Claims, Section 3 of the Act provides that:

…an 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 part from such a decision or other practice.

The Commission’s EEOC Compliance Manual, Number 915.003, Section 2: Threshold Issues
(May 12, 2000) states that “An aggrieved individual can bring a charge [within the applicable
time frame] after receiving compensation that is affected by a discriminatory compensation
decision or other discriminatory practice, regardless of when the discrimination began.”
Further, it states that, “Payment of compensation is actionable if it is affected by either a

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discriminatory compensation decision or some other discriminatory practice. For example, a
charging party may challenge [within the applicable time frame] any paycheck that is lower
than it otherwise would be because of the discriminatory denial of a career ladder promotion.
In a career ladder promotion, an individual is promoted to a higher pay and/or grade level
based on whether that individual meets certain predetermined performance, time-in-grade, or
other criteria.” Id.

Upon review, we find the Commission properly reversed the Agency’s dismissal of
Complainant’s complaint for untimely EEO Counselor contact. In the present case,
Complainant alleged that as a result of the Agency’s discriminatory denial of her career ladder
promotion in 2012, her pay was lower than it otherwise would be and thus, she alleged
ongoing pay discrimination with each paycheck she received. Thus, we find that
Complainant’s initial EEO Counselor contact concerning the promotion claim was timely
raised.

After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 0120160188 remains the
Commission's decision. There is no further right of administrative appeal on the decision of
the Commission on this request. The Agency shall comply with the Order as set forth herein.

ORDER (E0610)

The Agency is ordered to process the remanded claims in accordance with 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 (K0610)

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

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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.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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 (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

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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

June 8, 2016
Date