0120131570
08-06-2013
Dianne Weaver, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Dianne Weaver,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120131570
Agency Nos. 4C-190-0009-13
4C-190-0040-13
4C-190-0041-13
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 13, 2013, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency's Postal Station facility in Collegeville, Pennsylvania. On January 25, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. On October 5, 2012, Complainant's limited duty job offer was rescinded and she was sent home.
2. On August 29, 2012, Complainant learned after speaking with the HR Manager that she should have been paid at the rate for 48 evaluation hours; not 45 evaluation hours that she has been paid since she was injured.
The Agency split Complainant's formal compliant into three separate matters. The Agency accepted claim (1) on the basis of disability has maintained Agency No. 4C-190-0009-13 (Complaint 1). The Agency found that claim (1) on the basis of disability should be held in abeyance pending the Glee Williams Class Action. The record indicates that the class action alleges discrimination on the basis of disability in connection with the Agency's decision to reduce the number of hours on a modified work assignment. The Agency split the basis of reprisal for claim (1) and shall address this claim under the Agency No. 4C-190-0040-13 (Complaint 2). This complaint has been accepted for investigation. Finally, the Agency addressed claim (2) under Agency No. 4C-190-0041-13 (Complaint 3).
The Agency dismissed Complaint 3 pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that Complainant has been receiving this rate since April 13, 2000. However, Complainant did not contact the Agency until October 15, 2012; over twelve and a half years since the onset of the alleged error in payment. The Agency noted that Complainant stated that she previously raised this issue in a grievance in 2007. As such, Complainant has been aware of the discrepancy in her pay rate but failed to raise the matter to the EEO Counselor until she had exhausted other avenues such as the grievance process. As such, the Agency dismissed Complaint 3.
This appeal followed. Complainant's attorney (Attorney) argues that the Agency fragmented the complaint denying Complainant the opportunity to present her claim of discrimination. Complainant argued that she raised the issue of the pay discrepancy with management. Following that conversation, Complainant had her limited duty position taken away from her. She was provided with a new assignment in December 2012. Therefore, the Attorney requests that Complainant's complaints be consolidated and remanded back to the Agency for processing as a single complaint. The Agency requests that the Commission affirm its actions.
ANALYSIS AND FINDINGS
Complaints 1 and 2
The Agency placed Complainant's claim of disability based discrimination when she was removed from her position in October 2012. The Agency then placed this complaint in abeyance pending the processing of the Williams Class Action. The Agency provided documents pertaining to the Williams Class Action which show that this complaint involves a "reduction in work hours after being assessed by management at [the employee's] local facility in violation of the Rehabilitation Act."
The Commission notes that it has previously held that a complainant may appeal an agency decision to hold an individual complaint in abeyance during the processing of a related class complaint. See Roos v. United States Postal Service, EEOC Request No. 05920101 (February 13, 1992). In addition, Equal Employment Opportunity Management Directive-110, Chapter 8, � III(C) (November 9, 1999) provides, in relevant part, that "an individual complaint that is filed before or after the class complaint is filed and that comes within the definition of the class claim(s), will not be dismissed but will be subsumed within the class complaint."
Upon review, we find that the Agency incorrectly held complainant's claim of disability discrimination in abeyance. Specifically, in her formal complaint, Complainant alleged that the Agency sent her home in October 2012. There is no indication in the record as to why Complainant was sent home. Therefore, we cannot find that Complainant's claim falls within the class complaint for it is not clear at this point what the process was for sending Complainant home and if that process matches the claim raised in the class compliant. This claim of disability discrimination is not properly subsumed within the Williams class action.
The agency also indicated that complainant's remaining claim concerning the basis of reprisal is being processed separately under complaint #4C-190-0040-13. Thus, the Commission finds that the agency should consolidate the complaint and process the complaints together.
Complaint (3)
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission.
On appeal, Complainant asserted that she was subjected to unlawful compensation discrimination. 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, or when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by the 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.
Applying the Lilly Ledbetter Fair Pay Act of 2009, we find that Complainant was affected by the application of an allegedly discriminatory compensation decision or practice each time she received a paycheck and therefore timely contacted an EEO Counselor within forty-five days of receiving a paycheck. We note that the Agency asserted that Complainant was aware of the compensation issue in 2007 when she filed a grievance. However, pursuant to the Act, we find that Complainant's contact was made in a timely manner. As such, we determine that Complaint (3) was improperly dismissed. Furthermore, Complainant asserted that the separation of this claim from Complaints (1) and (2) fragmented her compliant. As such, we find that the complaints should be consolidated.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the complaints for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded complaints and consolidate all three complaints 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 (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 (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
August 6, 2013
__________________
Date
2
012013-570
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131570