Joan Charles, Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 7, 2010
0120102822 (E.E.O.C. Oct. 7, 2010)

0120102822

10-07-2010

Joan Charles, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.


Joan Charles,

Complainant,

v.

Ray Mabus,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120102822

Agency No. 095281303135

DECISION

Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 10, 2010, 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. Upon review, the Commission finds that Complainant's complaint was improperly dismissed, in part, pursuant to 29 C.F.R. � 1614.107(a)(2).

BACKGROUND

On August 26, 2009, Complainant initiated EEO contact. Complainant alleged that the Agency discriminated against her on the basis of sex (female) when, during its March 17, 2007 implementation of the National Security Personnel System (NSPS), it converted her position to YA-0341-02, Supervisor Management Services Specialist (Administrative Officer), which was below the minimum of the pay band1. Complainant stated that the Agency rewrote her position description and changed her classification, effective January 4, 2009, to YC-0341-Q2 Supervisor Management Services Specialist. Complainant also stated that she later learned that other Administrative Officers were converted to "YC" classification during NSPS, and that she is only female in an administrative officer position and she was not.

In a Notice of Final Interview/Right to File a Discrimination Complaint (NORF), dated December 9, 2009, the Agency informed Complainant that she had the right to file a formal complaint within 15 days of the date she received the NORF. Complainant filed a formal complaint, dated and hand-delivered January 22, 2010, reiterating the above claim.

In its May 10 final decision, the Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact and an untimely formal complaint. The Agency stated that Complainant became aware of incorrect classification in October 2008 and different pay on January 4, 2009, but did not initiate EEO contact until seven months later in August 2009. Further, the Agency stated that Complainant signed for the NORF on December 14, 20092 but did not file formally until January 22, 2010. The instant appeal from Complainant followed.

On appeal, Complainant stated that she became aware of a pay disparity in August 2009 and initiated EEO contact at that time, and initiated EEO contact in October 2008 when she learned of incorrect classification between her and her male counterparts. Complainant added that she did not file a formal complaint at that time because a manager told her that he would have her classification changed to "YC" and she did not realize the matter was not resolved until an August 2009 email. Finally, Complainant stated that an EEO Counselor led her to believe that she was overreacting and should be satisfied with her classification change.

ANALYSIS AND FINDINGS

We find that Complainant's complaint was improperly dismissed, in part, pursuant to 29 C.F.R. � 1614.107(a)(2). The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. �� 1614.105 & 1614.106. 29 C.F.R. �� 1614.105 & 1614.106, respectively, require initial EEO contact within forty-five (45) days of the date of the matter alleged to be discriminatory and filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so. All � 1614 time limits are in terms of calendar days unless otherwise noted. The burden is upon the agency to support its dismissal.

Here, we find that the Agency properly dismissed the matter of Complainant's improper classification pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely formal complaint. The Agency found and Complainant acknowledged that she initiated EEO contact in October 2008 regarding her misclassification but failed to proceed with the formal EEO complaint. Further, Complainant did not provide adequate justification for abandoning her misclassification claim. Conversely, we find that the Agency failed to support its dismissal as to Complainant's claim of pay disparity. There is insufficient evidence of record reflecting Complainant's receipt of the NORF on December 14, 2009. The record contains a United States Postal Service Domestic Return Receipt for certified mail, which indicates a delivery on "2/4" to Complaint at an address different than her current address and signed by someone with the same last name but different first name as Complainant. We determine that there is no evidence indicating that Complainant actually received the NORF on December 14 as the Agency alleged. In fact, the receipt indicates Complainant received the NORF after she filed the formal complaint, which presents a timeliness issue.

Where there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy, v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). As Complainant filed her formal complaint on January 22, 2010, and there is inadequate evidence of her receipt of the NORF, we find Complainant's formal complaint was timely filed. Accordingly, we AFFIRM the Agency dismissal as to misclassification but VACATE and REMAND its dismissal of the pay disparity claim. We note that the Agency will need to investigate the misclassification to the extent that it is background evidence for the pay claim.

ORDER

The Agency is ordered to process the remanded claim of pay disparity in accordance with 29 C.F.R. � 1614.108. (We acknowledge that the Agency will need to process the improper classification action as it relates to the pay claim, i.e., is background evidence.) 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 (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

__October 7, 2010_____

Date

1 We note that Complainant stated that she supervised six positions and the record indicates that classification "YA" is for non-supervisors.

2 The domestic return receipt for the NORF indicates "2/4" as date of delivery to an address different than Complainant's current address of record and bearing the signature "Diane Charles."

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0120102822

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120102822