01a34936
02-12-2004
Douglas R. Keins, Complainant, v. Michael M. Reyna, Chairman and Chief Executive Officer, Farm Credit Administration, Agency.
Douglas R. Keins v. Farm Credit Administration
01A34936
February 12, 2004
.
Douglas R. Keins,
Complainant,
v.
Michael M. Reyna,
Chairman and Chief Executive Officer,
Farm Credit Administration,
Agency.
Appeal No. 01A34936
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO contact.<1> The agency characterized complainant's complaint as
alleging that he was discriminated against on the basis of age when:
Between 1994 and January 2002, the agency did not meet its statutory
obligation of seeking to maintain compensation comparability with the
federal bank regulatory agencies as required by � 5.11(c)(2)(A) of the
Farm Credit Act of 1971, as amended. Complainant alleged that a 23.3
percent range adjustment to the VH-40 grade announced on December 23,
2002, demonstrates that the agency had not maintained comparability
in the past, and showing that the agency's past compensation practices
have resulted in harm to complainant and other older employees.
The agency's pay-for-performance program between 1994 and January 2002,
discriminated against older or higher salaried employees because it
contained in-range ceilings (what complainant called �quintile limits�)
in the salary range structure. Complainant alleged that the in-range
ceilings limited pay increases to employees who were at the end ranges
of their pay grade as compared to younger or salaried employees who
were at the beginning ranges of their pay grade.
The agency downgraded complainant from a grade VH-41 to a VH-40 as a
result of eliminating the training division in 1992.
The record indicates that the alleged discriminatory events occurred from
1992 to January 2002, but that complainant did not initiate contact with
an EEO Counselor until February 3, 2003, which is beyond the forty-five
(45) day limitation period. Although complainant asserts on appeal that
he was not aware of the alleged discrimination until January 2003,
the record, including schedules of performance evaluations and pay
raises submitted by complainant, shows that he had, or should have had,
a reasonable suspicion of discrimination each year when adjustments were
made to the agency's pay-for-performance program.
We note that complainant also challenges the agency's characterization
of claim (3), asserting that his claim is that �placing [him] at the
top of a lower grade effectively denied [him] future raises because
of the agency's failure to maintain pay comparability for high-end
employees.� We find however, that even if complainant's claim (3) is
viewed as stated by complainant on appeal, complainant should have had
a reasonable suspicion of discrimination each year the agency failed to
maintain pay comparability and denied him a raise, and that the claim
was therefore untimely raised.
Accordingly, as complainant has raised no persuasive arguments or evidence
to warrant an extension of the time limit for initiating EEO contact, the
agency's final decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
February 12, 2004
__________________
Date
1The agency also dismissed claims (1) and (2)
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Since
we are affirming the agency's dismissal of claims (1) and (2) pursuant to
29 C.F.R. � 1614.107(a)(2), we will not address the agency's alternative
grounds for dismissal.