01984861
11-08-1999
Irene Y. Fang, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, (Comptroller of the Currency), Agency.
Irene Y. Fang v. Department of the Treasury
01984861
November 8, 1999
Irene Y. Fang, )
Appellant, )
)
v. ) Appeal No. 01984861
) Agency No. 98-1240
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
(Comptroller of the Currency), )
Agency. )
_______________________________)
DECISION
On June 5, 1998, appellant, by her attorney, filed a timely appeal
from the agency's May 14, 1998 final decision (FAD), which partially
dismissed appellant's April 23, 1998 formal EEO complaint for failure
to state a claim, and untimely EEO Counselor contact, pursuant to 29
C.F.R. ��1614.107(a) and 1614.107(b). We accept appellant's appeal
pursuant to EEOC Order No. 960, as amended, and, for the reasons set
forth below, modify the FAD.
The FAD framed the issues in appellant's complaint as follows:
(1) Whether appellant was discriminated against on the bases of race
(Asian), sex (female), and national origin (Chinese), when the agency
allegedly failed to pay her at the OC-20 level during her service as
Acting Director, beginning October 1996 through June 1997, and December
1997 and continuing.
(2) Whether the agency allegedly unlawfully refused to adjust appellant's
pay equal to a newly-hired co-worker under appellant's supervision on
September 15, 1997.
(3) Whether the agency allegedly unlawfully did not select appellant for
the position of Supervisory Financial Economist (Director for Economics
and Evaluation), OC-110-20, under Vacancy Announcement Number (VAN)
97-23E, on June 6, 1997.
(4) Whether the agency unlawfully engaged in a pattern of biased job
selections and job creation processes in May, September, and November
1997.
The FAD also identified two additional allegations, which the Commission
denominates allegations (5) and (6), for the purposes of clarity and
consistency. The FAD averred that appellant was unlawfully subjected to
a hostile working environment, when:
(5) in a meeting on December 17, 1997, and February 3, 1998, the agency
criticized appellant's performance, citing lack of leadership ability
and vision; and
(6) in January 1998, and February 1998, appellant was blamed for the
Division's performance on the Comptroller's first two testimonies.
The agency accepted allegation (1) for investigation, by separate
correspondence. The FAD dismissed allegations (2) through (4)
finding that appellant's EEO Counselor contact of February 9, 1998,
was beyond the applicable time limitation of 45 days, as set forth at
29 C.F.R. �1614.105(a)(1). The FAD dismissed allegations (5) and (6)
for failure to state a claim.
On appeal, appellant states that she may have been aware of the alleged
incidents when they occurred. However, appellant argues that she was not
aware of the discriminatory "motivation" behind those incidents, during
the 18 months she was Acting Director, until she met with her second-line
supervisor (S-2), who, on February 4, 1998, purportedly told her that
the position for which she had been Acting Director would not be filled.
Appellant argues that, until the February 4, 1998 meeting with S-2, who
offered a negative view of her performance she had been led to believe
by her immediate supervisor (S-1) that she would eventually be placed in
charge of her division and receive fair compensation. Appellant argues
that she therefore did not have a reasonable suspicion of discrimination
until the February 4, 1998 meeting with S-2. Finally, we note appellant's
argument that her allegations constitute a continuing violation.
In response, the agency argues that appellant had reasonably suspected
discrimination months before her February 9, 1998 EEO Counselor contact;
that because appellant has failed to satisfy the Commission's standard
of reasonable suspicion regarding the timeliness of her EEO Counselor
contact, she cannot avail herself of the continuing violation theory;
and that appellant's allegations concern discrete events that are not
interrelated. Finally, we note that the agency appears to raise an
alternative argument that allegation (4) fails to state a claim.
As a threshold matter, we find that appellant has not challenged on
appeal the FAD's dismissal of allegations (5) and (6). Instead, we find
appellant's appeal and, subsequently, her brief, expressly declares, in
pertinent part, that appellant "appeals the dismissal of three issues
out of four." Therefore, we will not disturb the FAD's dismissal of
allegations (5) and (6). See Foy v. Department of the Navy, EEOC Appeal
No. 01966015 (January 30, 1998).
We now address the FAD's dismissal of allegations (2) through (4),
all of which the FAD dismissed for untimely EEO Counselor contact, in
the present case. We find the FAD erred in dismissing allegation (2).
We find the essence of allegation (2) is that appellant alleges that due
to sex-based wage discrimination under Title VII, she did not receive pay
equal to that of a male employee (EE) who was paid more than appellant
was despite the fact that her duties were greater than his. According to
appellant's complaint, she was an OC-18, Series 110, Supervisory Financial
Economist in the agency's Economic & Policy Analysis Economics Department
at the time this matter arose.<1> Although the record is not entirely
clear in this regard, it appears EE was selected by appellant<2> on
September 10, 1997, as an OC-110-18 Financial Economist, whom the agency
subsequently designated "to fill the newly created Assistant Director
for Policy Analysis position in E&E," according to a September 12,
1997 memorandum from S-1 through S-2 to the Senior Deputy Comptroller
for Administration. The memorandum indicated that EE was provided with
a compensation package that included a "signing bonus," a base salary at
the top of the OC-18 level, and a "geographic differential." According
to ECR, EE, as an OC-18 [E & E] Assistant Director for Policy Analysis,
who was subordinate to appellant when she was Acting Director, and "who
reports to the Director for E & E," was paid $127,000 (including the
signing bonus) while appellant was paid $107,000, as EE's supervisor.
We find that, in allegation (2), appellant is alleging sex-based wage
discrimination under Title VII. Thus, each time appellant received
the allegedly unequal pay constituted a recurring violation, so long
as complainant "contacted an EEO Counselor within 45 days of receiving
the allegedly unequal pay." See McCubbins v. Department of the Navy,
EEOC Appeal No. 01964090 (February 12, 1997) (citing Robinson v. General
Services Administration, EEOC Request No. 05950558 (July 1, 1996).<3>
We find, however, the record unclear as to when, if at all, the pay
disparity ended. See Moller v. Department of Health and Human Services,
EEOC Request No. 05960505 (July 24, 1997). Therefore, since the agency
has the burden of providing sufficient evidence in support of the FAD,
particularly in matters concerning the timeliness of EEO Counselor
contact, the Commission will remand allegation (2), in the present case,
for a supplemental investigation into whether appellant raised allegation
(2) in a timely manner. See Henry v. U.S. Postal Service, EEOC Request
No. 05940897 (May 18, 1995); Guy v. Department of Energy, EEOC Request
No. 05930703 (January 14, 1994).
With regard to allegation (3), we find the agency properly dismissed
that allegation. We find that appellant was aware, by her own admission
in her complaint, that there had been no selection for the OC-110-20
position, under VAN 97-23E, when "the cert list for the advertisement
was allowed to expire, and no selection was made for the position,"
even though S-1 purportedly repeatedly told appellant "she was the best
candidate for the position and his choice for the position." In her
complaint, appellant alleged that S-1 was the selecting official for the
position at issue. Given this allegation, and appellant's claims that
she had been discriminated against since 1996, we find that a reasonable
person in appellant's circumstances would have suspected discrimination
months before her February 9, 1998 EEO Counselor contact. See Cochran
v. United States Postal Service, EEOC Request No. 05920399 (June 18,
1992). Therefore, we reject appellant's argument that allegation 3
is part of a continuing violation. See Sabree v. United Brotherhood
of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990);
Berry v. Board of Supervisors of L.S.U., 715 F.2d 971 (5th Cir. 1983).
We find, for the same reasons discussed in our analysis of allegation
(3), that the agency properly dismissed allegation (4). We find that
allegation (4) essentially was submitted by appellant in support of her
claim that the agency engaged in a pattern of discrimination against her.
In allegation (4), appellant cited the incidents of three employees
(including EE) who were, in appellant's view, improperly promoted either
to an OC-18 or an OC-20 position. Appellant cites the date of the last
alleged discriminatory promotion as November 10, 1997, approximately three
months before her EEO Counselor contact on February 9, 1998. In addition,
we find no evidence that appellant applied for any vacancies at the OC-20
level for which she was specifically nonselected. Therefore, we find
allegation (4) is both untimely and not actionable. See Owen v. Social
Security Administration, EEOC Request No. 05950865 (December 11, 1997).
Having reviewed the entire record, the arguments on appeal including
those not expressly addressed herein, and for the foregoing reasons,
the Commission hereby VACATES the FAD's dismissal of allegation
(2), and REMANDS that allegation for further processing consistent
with this decision and regulations set forth at 29 C.F.R. Part 1614.
The parties are advised that this decision is not a decision on the
merits of appellant's complaint. The Commission hereby AFFIRMS the FAD's
dismissal of allegations (3) and (4). The agency shall comply with the
Commission's ORDER set forth below.<4>
ORDER
The agency is ORDERED to conduct a supplemental investigation into
whether allegation (2) is timely. That is, the agency shall obtain and
produce evidence regarding the last date appellant received pay allegedly
unequal to the pay of the comparative male employee identified in the
Commission's decision as "EE". The agency shall then issue a letter
of acceptance to appellant and her attorney accepting allegation (2)
for investigation, in addition to allegation (1) previously accepted
by the agency. Alternatively, the agency may again dismiss allegation
(2). If the agency dismisses allegation (2), it must do so in a new final
decision with appeal rights to the Commission. The new final decision
must state all legal grounds, factual bases, and documentation relied
on in support of dismissal.
All ordered actions, including the supplemental investigation, and
issuance of the letter of acceptance or new final decision, must be
completed within sixty (60) calendar days from the date the Commission's
decision becomes final.
A copy of a report of the supplemental investigation, and the letter of
acceptance or new final decision, must be submitted to the Compliance
Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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.
RIGHT TO REQUEST COUNSEL (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
11/08/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1According to the EEO Counselor's report (ECR), appellant was "Deputy
Director, Economics and Evaluation [E & E], OC-110-18."
2Although appellant concedes she selected EE, she asserts that S-2 "told
me that he wanted [EE] on board, and the Chief Counsel's office expedited
the appointment."
3Sex-based wage disparity claims are also actionable under the Equal
Pay Act of 1963, as amended, 29 U.S.C. �206(d).
4To the extent appellant appears to have raised new allegations,
including reprisal, for the first time on appeal, she is advised to
seek EEO counseling within 15 days after she receives this decision,
if she wishes to pursue those allegations further. The Commission
advises the agency that if appellant seeks EEO counseling regarding
the new allegations within the above 15 day period, the date appellant
filed the appeal statement in which she raised these allegations with
the agency shall be deemed to be the date of the initial EEO contact,
unless she previously contacted a Counselor regarding these matters, in
which case the earlier date would serve as the EEO Counselor contact date.
Cf. Qatsha v. Department of the Navy, EEOC Request No. 05970201 (January
16, 1998).