0120172389
10-11-2017
Verlie S.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Bureau of Public Debt), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Verlie S.,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Bureau of Public Debt),
Agency.
Appeal No. 0120172389
Agency No. BFS170458F
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission from the Agency's decision dated June 20, 2017, dismissing her complaint alleging 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., and the Equal Pay Act (EPA), as amended, 29 U.S.C. � 206(d) et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Management and Program Analyst at the Agency's Bureau of Fiscal Services, Debt Management Services (DMS), Business Planning, Management and Analysis Division facility in Birmingham, Alabama.
In 2014, Complainant, a GS-14, step 5, served as an acting manager. In 2015, the Agency advertised for and filled the permanent manager position. Complainant was among the applicants for the permanent manager position, but was not selected.2 She alleged that in August 2016, she learned that the selectee (male) was being paid at a higher step (GS-14, step 8) than she had been when she was acting in the position. On March 29, 2017, Complainant initiated contact with an Agency EEO counselor to complain about this issue. When the matter could not be resolved informally, she filed a formal complaint on June 5, 2017.
The Agency dismissed the complaint for untimely EEO contact, reasoning that Complainant did not initiate counseling until March 29, 2017, beyond the limitation period set by regulation. The Agency concluded that Complainant was aware of the potential discrimination as early as September 8, 2015, and no later than August 12, 2016, when she was told that the individual who was chosen for the permanent position was started "at the top of the 14 pay scale."
This appeal of the dismissal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the occurrence of the matter alleged to be discriminatory, or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
Here, by Complainant's own admission, she learned on August 12, 2016, that the selectee, an outside candidate, started at the "top of the 14 pay scale," a higher step than she had earned when she was acting in the position. However, she did not seek EEO counseling until March 29, 2017, well beyond the 45-day limitation period. On appeal, Complainant first argues that the limitation period should not begin until Complainant had "confirmed information, which was when she had substantiation" of the difference in salary, and, therefore her March 29, 2017 contact "is not unreasonable." However, it is not sufficient to state that she was waiting for confirmation of the discrimination. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Here, we conclude that Complainant reasonably suspected discrimination more than 45 days before she first sought EEO counseling.
Complainant also argues that her claim should be deemed timely under the Lilly Ledbetter Fair Pay Act of 2009, Public Law 111-2, 123 Stat. 5 (January 29, 2009). The Ledbetter Act 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, the effective date of the Act. It provides:
...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.
In this case, we conclude that the Ledbetter Act does not apply. Complainant is alleging discrimination with regard to her pay when she was the acting manager in 2014. However, she was no longer in this acting position by September 2015 when the permanent position, a job for which Complainant applied but was not selected, was filled. In March 2017, when Complainant first sought EEO counseling, she was no longer affected by the alleged discriminatory act. In other words, Complainant's own compensation (what step she was on in the grade 14) was not set or otherwise impacted by the selection and salary of the permanent manager.
Finally, she asserts that the higher salary offered to the male was fraudulent, because it was based on a false representation of a material fact. She said the selectee's compensation was based on his application and the statement of the salary that he received at a previous employer. Complainant questioned whether the selectee was actually employed at another company at the time of his offer, and asserts he was not employed by the company named in the application and for which the salary determination was based. However, we note Complainant is not challenging her non-selection in this complainant and it is not our role to address fraud or any misinformation in the application of the selectee. Complainant acknowledged that the male selectee's starting salary was based on the employer's assessment of his application, although she disputes that the statements in his application were true.3
We find that that Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO counselor contact. Therefore, we find her claim was untimely raised.
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 Counselor contact.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
October 11, 2017
__________________
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.
2 Complainant's non-selection is not at issue in this complaint.
3 Complainant asserted that the Agency erred in giving the selectee's application credence because he did not provide accurate information regarding his previous employer. We note that in the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. See Complainant v. Department of Health and Human Services, EEOC Appeal 0120122134 (Sept. 24, 2014) (rejecting EPA claim where a complainant questioned the selectee's previous work experience.)
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