0220120007
05-15-2013
Agency.
Margaret A. Walter,
Grievant,
v.
Robert Velasco II,
Chief Executive Officer,
Corporation for National and Community Service,
Agency.
Appeal No. 0220120007
DECISION
Grievant filed a timely appeal with this Commission from the Union's decision, dated July 9, 2012, concerning her grievance which raised allegations 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., the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) 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 events giving rise to this complaint, Grievant worked as a Grants Management Specialist at the Agency's facility in Philadelphia, Pennsylvania.
On March 12, 2012, Grievant filed a grievance asserting that her rating for 2012 was lower than justified, and that she was not being fairly compensated and did not receive equal pay for equal work.
On July 9, 2012, the Union, through its president, informed Grievant that it had decided not to invoke arbitration on her grievance. The Union president stated that a pay differential between employees in the same position "is not in itself a direct violation of the Equal Pay Act." The Union advised Grievant to appeal the matter to the Commission, but did not give her specific appeal rights.
In response to Grievant's appeal, the Agency stated that Grievant was informed on May 7, 2012 that the Agency was "unable to process her complaint." The Agency attached the letter it sent to Grievant stating that it was dismissing her informal EEO complaint in which she alleged discrimination on the basis of race (Caucasian), sex, and age (60) when she continued to be paid less than other Grants Managements Specialists because she had filed a grievance on the matter. The Agency's letter did not give Grievant appeal rights to the Commission.
In the instant matter, we find that Grievant intended to pursue her EEO claims, and the Agency's letter is, in effect, a final Agency decision. The Agency included no information as to when Grievant contacted the counselor, and whether she was notified that she had to chose between filing a grievance or filing an EEO complaint. There was no evidence in the record that the grievance process allows for claims of discrimination to be raised under 5 U.S.C. 7121(d). Additionally, it is not clear that Grievant raised all of the same bases in her grievance. Finally, the Agency improperly dismissed the matter without giving appropriate appeal rights to the Commission. Additionally, it appears that the Agency failed to maintain an EEO file on the matter.
Accordingly, we are remanding the matter and directing the Agency to process Grievant's EEO complaint as set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Grievant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Grievant a copy of the investigative file and also shall notify Grievant 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 Grievant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Grievant's request.
A copy of the Agency's letter of acknowledgment to Grievant 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 Grievant. If the Agency does not comply with the Commission's order, the Grievant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Grievant 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 Grievant 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 Grievant 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 Grievant 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 (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).
GRIEVANT'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
May 15, 2013
__________________
Date
2
0220120007
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0220120007