0120110066
02-25-2011
Ted L. Rollolazo, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Western Area), Agency.
Ted L. Rollolazo,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120110066
Agency No. 4E-000-0001-10
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated August 11, 2010, 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. Upon review, the Commission finds that Complainant's complaint
was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected him
to discrimination on the basis of race (Filipino) when: on March 2,
2010, Complainant found out that other employees received saved grade
and/or saved pay status or both when they took lower-level positions and
Complainant did not receive either saved-grade or saved-pay status when
he took a lower-level position of Customer Service Analyst, EAS-17, due to
restructuring of the Distribution Network Office in Seattle, Washington.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)
for failure to state a claim. The Agency determined that Complainant was
given the opportunity in October 2009 to accept a directed reassignment
with saved-salary/saved-grade status; however, Complainant declined the
offer after receiving his October 15, 2009 directed reassignment letter.
The Agency noted that at that time, Complainant was informed that he would
not receive saved-grade/saved-pay status should he accept a lower-level
position. Subsequently, Complainant applied for a lower-level position.
The Agency concluded that as a result of Complainant voluntarily declining
the directed reassignment and applying for the lower level position, he
was not aggrieved and had not suffered an adverse action. Accordingly,
the Agency dismissed the complaint for failure to state a claim.
Additionally, the Agency dismissed the complaint for untimely EEO
Counselor contact. The Agency determined that the record indicated that
Complainant received the directed reassignment letter in October 2009,
but did not contact an EEO Counselor until April 9, 2010. As this
was approximately 171 days after the alleged incident and beyond the
45-day time limit, the Agency also dismissed Complainant’s complaint
as untimely.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he continually asked management for
saved-grade/saved-pay status, but was told there were no exceptions.
Later, he discovered other similarly-situated employees who declined
directed reassignments, accepted lower-level positions, and still
received saved-grade/saved-pay status. Complainant asserts that this
is discriminatory and violates Agency policy. Accordingly, Complainant
requests that the Commission reverse the Agency’s dismissal. The Agency
requests that the Commission affirm the dismissal.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides,
in relevant part, that an agency shall dismiss a complaint that
fails to state a claim. Upon review, the Commission determines that
the instant formal complaint was improperly dismissed for failure to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. §§
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an “aggrieved employee” as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). Applying this regulation,
the Commission finds that Complainant’s complaint states a claim.
Complainant alleges that he has been subjected to a discriminatory pay
decision. Complainant has shown an injury or harm to a term, condition,
or privilege of employment for which there is a remedy. Accordingly,
the Agency’s dismissal for failure to state a claim was improper.
Additionally, the Commission finds that the Agency’s dismissal
of Complainant's complaint as untimely was in error. The crux
of Complainant's formal complaint is that he is being subjected
to unlawful compensation discrimination and is seeking back pay.
The Agency's dismissal on the grounds of untimely EEO Counselor contact
is improper. The President signed the Lilly Ledbetter Fair Pay Act of
2009, Pub. L. No. 111-2, 123 Stat. 5 (“the Act”) on January 29, 2009.
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, 29 U.S.C. § 621 et seq., Title I 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.
Section 3 of the Act also provides that back pay is recoverable for
Title VII violations up to two years preceding the “filing of the
charge,” or the filing of a complaint in the federal sector, where
the pay discrimination outside the filing period is similar or related
to pay discrimination within the filing period.
Applying the above statute, the Commission finds that Complainant timely
initiated contact with an EEO Counselor. Therefore, the Commission
finds that the Agency's dismissal on this ground was improper.1
CONCLUSION
Accordingly, the Agency's decision dismissing Complainant's complaint
is REVERSED. The complaint is hereby REMANDED to the Agency for further
processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim 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 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 (M0610)
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), at 9-18 (Nov. 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 (R0610)
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 (Z0610)
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
February 25, 2011
Date
1 Even in the absence of the Lilly Ledbetter Fair Pay Act of 2009, the
Commission would find that Complainant timely initiated EEO Counselor
contact for the entire period he is alleging a discriminatory diminution
of wages since he did not have a reasonable suspicion of discrimination
until March 2, 2009, and contacted an EEO counselor on April 9, 2009.
29 C.F.R. § 1614.105(a)(1) & .(a)(2).
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01-2011-0066
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110066