0120101251
04-15-2011
Evelyn Bartlett, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Evelyn Bartlett,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120101251
Hearing No. 510-2008-00267X
Agency No. 5R1S10001
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated December 16, 2010, dismissing her complaint of unlawful
employment discrimination in violation of the Equal Pay Act of 1963
(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 Stock Fund Management Specialist, GS-09, at the Agency's 45th Logistics
Readiness Flight, Space Wing at the Patrick Air Force Base (AFB), Florida.
In November 2009, she filed a formal complaint alleging that the Agency
subjected her to discrimination on the basis of sex (female) when:
1. on September 3, 2009, she learned that a male employee was hired into
the newly developed Malmstrom AFB Stock Fund manager position, resulting
in her receiving less pay than her male counterparts for equal work, equal
skill, effort and responsibility, under similar working conditions; and
2. an identified Agency manager did not communicate or speak with her
after she learned of the new GS-11 male Stock Fund manager position at
Malmstrom AFB.1
In prior complaint 5R1S06005, filed in June 2006, Complainant alleged
that she was discriminated against based on sex when: (1) on April 19,
2006, her supervisor failed to make any move to address the issues
concerning her assignment as a GS-09 Stock Fund Manager with male peers
performing the same duties and responsibilities at the GS-11 level;
(2) the Agency failed to take necessary steps toward re-evaluating her
position for upgrade to GS-11; and (3) the Agency removed duties and
responsibilities from her position description while continuing to rate
her performance on tasks removed.
Complainant works under the Air Force Space Command, which has Stock Fund
Manager positions at various Air Force bases. In complaint 5R1S06005,
she alleged that all male Stock Fund Managers in the Air Force Space
Command were GS-11s, and cited one as a comparative who was located at
Vandenberg AFB in California.
On March 18, 2009, the parties entered into a settlement agreement
which closed complaint 5R1S06005. The agreement provided that it
resolved all disputes, issues and disagreements between Complainant
and the Agency arising out of, or connected with, the facts upon which
complaint 5R1S06005 was based, or from her employment with the Agency up
to the date of the signing of the settlement agreement.2 The settlement
agreement explicitly did not resolve future claims arising after the date
of the settlement agreement. The Agency agreed, among other things, to:
(1) secure a desk audit of Complainant's position, and if the audit or
subsequent appeal found her position should have been rated as a GS-11,
to provide retroactive pay back to November 23, 2002, (2) pay $61,000
in compensatory damages other than wages; (3) pay $19,000 in attorney
fees, and (4) change Complainant's first line supervisor in a specified
fashion.
In an email to a manager dated September 16, 2009, Complainant wrote
that she learned on September 3, 2009, that another GS-11 male Stock Fund
Manager was hired by the Air Force Space Command, at the Malmstrom AFB.
She wrote that she was the sole remaining GS-09 Stock Fund Manager in
the entire Air Force Space Command. Complainant later wrote to the
manager that she should be a GS-11 Stock Fund Manager like every other
Stock Fund Manager in the Space Command. In her November 2009 complaint,
Complainant indicated that there are a total of six Stock Fund Managers
in the Air Force Space Command, that she was the only GS-09, and the
AFBs in question were Los Angeles, Malmstrom, Peterson, F.E. Warren,
Vandenberg, and Patrick.
The Agency dismissed the November 2009 complaint for failure to state a
claim pursuant to 29 C.F.R. � 1614.107(a)(1). It reasoned, in relevant
part, that the complaint was resolved by the March 18, 2009, settlement
agreement.
CONTENTIONS ON APPEAL
Complainant argues that the settlement agreement resolved her first
complaint, which was about her being paid less than GS-11 male Stock Fund
managers at the Peterson, Vandenberg, FE Warren, and Los Angeles AFBs.
She writes that at the time of her prior complaint, the Stock Fund
manager at the Malmstrom AFB was a female, GS-09, and she learned on
September 3, 2009, that a male was placed there in a Stock Fund manager
position which was newly developed and classified as a GS-11 in June 2009.
She writes that the settlement agreement explicitly did not preclude
a future claim that arose after the date of the settlement agreement,
and argues her second sex discrimination/EPA claim arose on or about
September 3, 2009, when she was again denied equal pay for duties
she performed since September 3, 2009. In support of her argument,
she cites Hazelett v. Department of the Army, EEOC Appeal No. 01A21529
(May 3, 2002). She argues that in this case the Commission found that
although a complainant previously claimed the same issue of the agency's
violation of the EPA which was resolved in a settlement agreement, the
new claim involved a new denial of equal pay for the duties performed
after the settlement agreement was entered into.
In opposition to the appeal, the Agency argues, in relevant part, that
the subject matter of the complaint closed by the settlement agreement
was whether Complainant was discriminated against based on her sex
when her position was classified as a GS-09, the very same claim she
brings again.
ANALYSIS AND FINDINGS
Eight months after entering into a settlement agreement closing
her complaint that she was discriminatorily paid at the GS-09 level,
Complainant filed another complaint making the same claim. She argues
that the second complaint is different because it regards her being paid
less than a newly hired GS-11 male Stock Fund manager at an AFB which had
a female GS-09 Stock Fund Manager when her first complaint was brought.
This argument is not persuasive because Complainant has maintained all
along that the Air Force Space Command pays male Stock Fund Managers at
the GS-11 level, regardless of base location. The comings and goings
of male GS-11 Stock Fund managers does not create new claims.
We distinguish Hazelett. In Hazelett, the complainant filed prior
complaints in 1995 alleging a denial of the EPA, which was resolved in
a 1995 settlement agreement promoting her to a GS-08. In the November
2001 complaint before the Commission, the complainant, then a GS-08,
alleged that the Agency violated the EPA from July 8, 2001 through
August 2001 when she was not paid at the GS-11/12 level. It appears
that the complainant contended that she was doing special work for a
short period of time for which she was not fairly compensated, not the
same work all along.
We find that the matter raised in Complainant's complaint was previously
resolved and closed in the March 18, 2009, settlement agreement.
Accordingly, the Agency's final decision is AFFIRMED.
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 (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
April 15, 2011
__________________
Date
1 The Agency's definition of the complaint included additional allegations
which referred to prior complaint 5R1S06005 and the implementation of
a settlement agreement closing it. Complainant, who is represented
by counsel on appeal, clarifies that these additional matters were
background, and the complaint only comprises claims 1 and 2.
2 Excepted from this was the subject matter addressed in Complainant's
informal complaint 5R1S09003.
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0120101251
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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