0120120188
01-15-2013
Eric K. Berounsky, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Eric K. Berounsky,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120120188
Agency No. ARFTLEAV11JUN02685
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 12, 2011, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Security Guard, GS-0085-04, Step 1, at the Agency's Directorate of Emergency Services facility in Fort Leavenworth, Kansas.
On July 21, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of sex (male) and age (43) when, on May 5, 2011, he learned that the Agency paid a male co-worker at a higher pay step and granted the other employee an interview, which Complainant was not offered.
According to the Counselor's Report, the Agency hired Complainant on June 21, 2010. Like others hired with him, he was offered a GS-4 salary at the Step 1 level. He did not engage in negotiations for a higher salary. On August 30, 2010, the Agency hired additional guards and offered them the same salary that it offered those hired on June 21, 2010. The record shows that the comparator declined the salary initially offered and negotiated for a higher starting salary. Complainant conceded that he realized that everyone hired at the time he was hired was offered the same pay that Complainant was offered. Those hired in the next batch were permitted to negotiate their salaries. Complainant acknowledged that the co-worker told everyone that he was a step 5, but Complainant thought that the co-worker way lying or bragging.
On January 21, 2011, Complainant met with management officials and union representatives to voice his concerns "regarding a difference in pay for one employee." He stated that if the matter was not resolved, he would file an EEO complaint. On May 5, 2011, Complainant saw a staff roster that showed that the male co-worker was receiving a higher pay step than complainant received. Complainant contacted the EEO Counselor on June 6, 2011.
The Agency dismissed the complaint. The Agency reasoned that Complainant was aware that there was a pay differential as early as January 21, 2011 but did not make timely contact with an EEO Counselor.
This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) calendar days of an alleged discriminatory event or the date that the aggrieved person knew or reasonably should known of the discriminatory event. The Commission has adopted a "reasonable suspicion" standard to determine when the 45-day limitation period is triggered.
The record discloses that on August 30, 2010 the Agency granted the comparator employee a higher salary. Complainant was clearly aware of the disparity when he met with management and the union on January 21, 2011. Even using the January 21, 2011 date as the date that triggered the obligation to contact an EEO counselor, Complainant's EEO Counselor contact was beyond the forty-five (45) day limitation period.
On appeal, Complainant alleges that he made management aware of his desire to start at a higher pay step but was told of the policy to pay security officers at the GS-4, step 1 rate. The record shows that Complainant challenged the policy through the management and union processes before pursuing an EEO complaint. The Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000).
Because Complainant admits he was told directly by the comparator shortly after the comparator was hired that he was paid at a higher rate and because complainant threatened to file an EEO complainant as early as January 21, 2011, we find that his obligation to seek EEO counseling was triggered at that time.
Moreover, as already noted, the time for contacting an EEO counselor is "triggered" when a complainant reasonably suspects that discrimination has occurred. That does not mean that his lack of awareness of his legal recourse required the Agency to waive or extend the EEO counseling deadline. There is a distinction between ignorance of the law and ignorance of relevant facts. The lack of reasonable suspicion justification only comes into play when the complainant is ignorant of relevant facts. See Wood v. Secretary of the Navy, EEOC Request No. 05901196 (April 10, 1991). Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
Accordingly, we AFFIRM the Agency dismissal for untimely EEO counselor contact.
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 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 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 (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 (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
January 15, 2013
__________________
Date
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0120120188
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120188