0120143265
03-16-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120143265
Agency No. ARCEJACK14JUN02031
DECISION
On September 23, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated September 11, 2014, dismissing her 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., and the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Environmental Engineer at the Agency's U.S. Army Corps of Engineers, South Atlantic Division in Atlanta, Georgia.
Complainant filed a prior complaint (Complaint 1), alleging, in relevant part, that she was discriminated against based on reprisal for prior equal employment opportunity (EEO) activity when on November 22, 2005, she was not selected for the position of Senior Plan Formulation Specialist, GS-14. Following an investigation and a hearing, an EEOC Administrative Judge (AJ) found discrimination on this claim, and on February 27, 2008, ordered in relevant part that:
The Agency is ordered to pay the complainant the difference between the compensation the Complainant actually received and the full range of compensation, salary, bonus, rate of pay, etc. that she would have earned if she had been promoted in November 2005 to the position of GS14 Senior Plan Formulation. The Agency is ordered to ascertain the proper step, rate of pay, cost of living increase, bonus, TSP or other retirement entitlement, and any other term of compensation that the complainant would have received had she gotten that promotion, plus legal interest. The amount of back pay to be paid, at a minimum, includes any bonuses earned by the candidate selected in lieu of Complainant from the time of initial promotion to the current time.
On April 3, 2008, the Agency issued a final action deciding it would fully implement the AJ's decision. Thereafter, Complainant filed an appeal. She requested, in relevant part, that the EEOC clarify the AJ's order. The Agency advised Complainant that it would not promote Complainant as a remedy because the AJ's order did not explicitly order this. She also raised concerns about back pay. In Ashford v. Department of the Army, EEOC Appeal No. 0120082461 (Aug. 26, 2008) the EEOC ordered, in relevant part, that:
1. The agency shall retroactively instate complainant to the position of Senior Plan Formulation Specialist, GS-14, or a substantially equivalent position, and shall amend its personnel records to reflect complainant's retroactive tenure in that position.
2. The agency determination of complainant's back pay shall consist of clear and concise, "plain language" statement of the methods of calculations used for the instant matter and actual calculations applying said formulas and methods. Complainant shall cooperate in the agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of back pay and/or other benefits, complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision" [therein].
Effective April 15, 2007, prior to the AJ's finding of discrimination, the Agency converted Complainant from the General Schedule (GS) pay system to the National Security Personnel System (NSPS) pay system.1 NSPS has pay schedules based on job type. The professional schedule is designated YD, and the supervisor/manager schedule YF. Each schedule has pay bands with large ranges in base annual salary. The professional schedule, for example, has three pay bands. In 2007, the band 2 base salary ranged from $38,864 to $87,039, and the band 3 ranged from $75,879 to $127,031.
Effective November 11, 2007, again prior to the AJ's finding of discrimination, Complainant was temporarily promoted from Environmental Engineer, YD-02 (band 2) to Supervisory Program Manager, YC-03. The temporary promotion was extended or renewed more than once. This included a stint starting August 8, 2008, not to exceed February 15, 2009. In an August 15, 2008 memorandum to herself, Complainant expressed some concern about being informed that day by the Agency's Regional Counsel that she would be placed in a new position within the Planning CoP as remedy for her not being selected to the Senior Plan Formulation position, GS-14. Complainant wrote that she was competitively temporarily promoted to the above Supervisory Program Manager position, and that the AJ's order did not require her to be removed from her temporary promotion. The record does not reflect when or whether Complainant accepted the above Agency offer or direction.
In late 2009 or in 2010, the Agency reverted back to the GS pay system. The record contains a Notification of Personnel Action, which was approved in September 2008, but effective January 8, 2006, indicating Complainant was designated as an Environmental Engineer, GS-14, Step 6. It contains a second Notification of Personnel Action, effective January 12, 2014, indicating Complainant was designated as an Environmental Engineer, GS-14, Step 0, with the notation "Employee is entitled to pay retention."
On July 29, 2014, Complainant filed the formal complaint before us (Complaint 2) alleging that the Agency discriminated against her based on her race (Black/African-American), sex (female), and reprisal for prior protected EEO activity when:
a. The Agency's implementation of the EEOC AJ's decision dated February 27, 2008, did not grant her the appropriate monetary relief nor include all relevant computations for salary, back pay, and other compensation in writing for her to determine if all appropriate relief had been granted.
b. She was subjected to unequal pay to White males and White females performing equal work.2
The Agency dismissed issues "a" and "b" for failure to timely initiate EEO counseling. It reasoned that Complainant knew or should have known by 2008 that the Agency did not properly calculate the back pay awarded by the AJ and of the discriminatory actions by Agency NSPS pay pool panel members which affected her salary, but she did not initiate EEO counseling until June 5, 2014, long beyond the 45 calendar day time limit. It also reasoned that when Complainant was returned to the GS pay system in 2010, she received information explaining this conversion and her appeal rights, there was no record of her appealing this action, and her June 5, 2014 EEO contact on this was untimely. The Agency also dismissed issues "a" and "b" for failure to state a claim because they alleged dissatisfaction with the processing of prior Complaint 1.
Regarding Complainant's allegation that the Agency failed to properly calculate her back pay pursuant EEOC orders awarding back pay, she contended that if she had been promoted to GS-14 in November 2005, when she was later converted from the GS to the NSPS pay system [in April 2007], she would have been placed in pay band 3, not 2, a much higher salary range, and this would have resulted in larger pay increases within the band based on her annual ratings and pay pool shares. Complainant alleged this continued to affect her pay rate to this day. On the compliance matter, Complainant wanted the Agency to demonstrate that her salary increases and bonuses were at least as good as those received by the candidate who was selected for the position of Senior Plan Formulation Specialist, GS-14. She also complained that she was not provided with all relevant computations of back pay.
Complainant further alleges that her unequal pay stems from a matter unrelated to compliance with EEOC orders awarding back pay. Specifically, in her complaint she contended that for the pay period of October 2007 to September 2008, the Agency NSPS pay pool panel lowered her supervisor's rating of record from 5 to 3. Complainant contended that a rating of 5 potentially would have resulted in a substantial pay increase, and the lowered rating affected her pay pool shares and performance payout.
Complainant contended that she learned of her pay disparity with Whites on June 4, 2014, when she reviewed an Operating Budget Breakout sheet which contained salary information. According to Complainant, she learned at that time that similarly situated white males performing work at pay level GS-14, step 0, earn from $6,053 to $7,575 more than her yearly. Complainant contended that from this information she inferred that management had a practice of giving African American females lower overall ratings and/or giving White employees a higher ratio of salary to bonus payouts during the NSPS rating years.
On appeal, Complainant reiterates contentions she made below. She argues that the Agency's failure to comply with EEOC orders on back pay is discriminatory. She argues that her compensation claim is timely under the Lilly Ledbetter Fair Pay Act. Complainant asks that the FAD be reversed with an order for the Agency to investigate her compensation discrimination claim, or alternatively, that this office accept her appeal as a Petition for Enforcement on EEOC Appeal No. 0120082461.
In opposition to the appeal the Agency argues that Complainant's complaint fails to state a claim. It reasons that she is collaterally attacking the proceedings on Complaint 1 by filing Complaint 2, rather than taking action to move the proceedings forward on Complaint 1 to resolve her back pay compliance dispute. The Agency reiterates that Complaint 2 was untimely counseled. It argues that the Lilly Ledbetter Fair Pay Act does not apply because most courts have concluded that the time frame for challenging the denial of a standard promotion, in which someone was denied the opportunity to move to another position at higher pay, is not affected by the above Act.
ANALYSIS AND FINDINGS
Issue "a" - Compliance with EEOC Orders
The EEOC took action to monitor compliance with its order in EEOC Appeal No. 0120082461 by assigning a Compliance Officer under EEOC Compliance No. 0620080867. On November 3, 2010, the Compliance Officer wrote the parties that the EEOC ceased monitoring activity because the Agency provided sufficient documentation to demonstrate that it took the required corrective actions. The Compliance Officer wrote the closure of compliance monitoring should not be construed as an adjudication of the merits of any claims arising out of the corrective action, and advised the parties that if they had any questions to contact him, and provided his contact information.
The Agency correctly argues that Complainant erroneously sought to gain compliance with EEOC orders on back pay by alleging issue "a" (failure to comply claim) in Complaint 2, filed in July 2014, nearly four years after compliance monitoring was closed. As argued by the Agency, issue "a" is a collateral attack on the processing of EEOC's orders awarding back pay on prior Complaint 1 (which were finalized in EEOC Appeal No. 0120082461). Klein v. Department of the Air Force, EEOC Appeal No. 0120131087 (May 30, 2013). Whether the Agency's alleged failure to comply with EEOC orders on back pay was motivated by discrimination or reprisal is legally irrelevant to the determination on whether it complied. Accordingly, the Agency's dismissal of issue "a" is affirmed.
To the extent Complainant still wishes to challenge the Agency's compliance with EEOC Appeal No. 0120082461, she is entitled to file a Petition for Enforcement with this Commission's Office of Federal Operations (c/o Compliance Division, P.O. Box 77960, Washington, DC 20013) pursuant to the provisions of 29 C.F.R. � 1614.503(a). Such a petition should refer to EEOC Compliance No. 0620080867. In addition, if Complainant chooses to file a petition, she should also submit an explanation for any delay on her part in seeking compliance.
Issue "b" - Claim of Discriminatory Pay
Issue "b" does not regard the Agency's failure to comply with the EEOC orders awarding back pay. This claim regards discriminatory unequal pay. Complainant puts forth various theories on why her pay is unequal. She contended that for the pay period of October 2007 to September 2008, the Agency NSPS pay pool panel lowered her supervisor's rating of record of 5 to 3, impacting pay. She also contended that based on there being a salary differential, she inferred that management had a practice of giving African American females lower overall ratings and/or giving White employees a higher ratio of salary to bonus payouts during the NSPS rating years.
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 Rehabilitation Act, and the ADEA. 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 of the filing period is similar or related to pay discrimination within the filing period.
We find that the Lilly Ledbetter Act applies to Complainant's unequal pay claim. We disagree with the Agency that this case is like challenging the denial of a standard promotion, in which someone was denied the opportunity to move to another position at higher pay, where the Act does not apply. Complainant is alleging that discriminatory application of the NSPS pay system caused the unequal pay from which she allegedly has today. This occurred after May 28, 2007, when coverage under the Act begins. See Complainant v. Department of Transportation, EEOC Appeal No. 0120122370 (Oct. 24, 2014) (Lilly Ledbetter Act applied to claim that the Agency denied the complainant a superior contribution pay increase). See also Complainant v. Department of the Treasury, EEOC Appeal No. 0120141856 (Sep. 23, 2014) (Lilly Ledbetter Act applied to unequal pay claim stemming from a reclassification of Complainant's position to a lower grade in 2008, where she filed her complaint in September 2013).
The FAD is AFFIRMED in part and REVERSED in part.
ORDER
The Agency is ordered to process the remanded claim (discriminatory pay claim) in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 (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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408)
You are authorized under section 16(b) of the Fair Labor Standards Act (29 U.S.C. � 216(b)) to file a civil action in a court of competent jurisdiction within two years or, if the violation is willful, three years of the date of the alleged violation of the Equal Pay Act regardless of whether you have pursued any administrative complaint processing. The filing of the 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
March 16, 2015
__________________
Date
1 This information was contained in a compliance report the Agency sent to this office in July 2008 (in an attempt to show compliance with the Agency's implementation of the AJ's decision).
2 The Agency defined issue b as the disparity occurring, in part, because the order in EEOC Appeal No. 0120082461 was not accurately implemented. For purposes of analysis we construe issue "b" as not containing the claim of non-compliance with EEOC Appeal No. 0120082461. Rather, that claim is subsumed into issue "a."
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0120143265
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120143265