0120090609
05-20-2009
Joanne F. Kitchen, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Joanne F. Kitchen,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120090609
Agency No. 9O0D08002
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) decision dated December 4, 2008, 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., the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq., and the Equal Pay Act of 1963,
as amended, 29 U.S.C. � 206(d) et seq. In her complaint,
complainant alleged that she was subjected to discrimination on the bases
of sex (female), age (63), and reprisal for prior protected EEO activity
(publicly identifying a Privacy Act violation) when:
1. from July or September 2006 to July 10, 2008, she was harassed by
management with negative comments about her performance and leadership,
not included in matters pertaining to her specific job area, issued
letters of caution, given a negative performance appraisal, and monitored,
examples including:
* on September 8, 2006, complainant received a negative email regarding
her handling of a Privacy Act violation,
* on February 1, 2007, she received a letter of caution for lack of
email etiquette;
* in July 2007, she was admonished for the way she handled a Freedom of
Information Act (FOIA) request involving the searching of email accounts,
and in September 2007, she was obstructed in handling an FOIA request
involving email accounts;
* during Unit Compliance Inspection preparations, there were negative
remarks that her section would bring the squadron rating down;1
* during the preparation for the NATO sub-registry inspection from
late December 2007 to April 2008, she was not included in meetings,
even though she was Program Manager for the NATO sub-registry, and was
falsely criticized for failing the last inspection;
* she was monitored on October 15, 2007, and January 11, 2008,
* on or about December 31, 2007, she received a negative appraisal
for the period covering October 1, 2006 through September 30, 2007,
and after she filed an internal administrative appeal (called a request
for reconsideration), the agency denied her reconsideration request on
January 24, 2008 (albeit granting some relief);
* on January 4, 2008, she received a letter of caution for not submitting
anyone in her section for quarterly awards; and
* on February 5, 2008, she was removed as section chief; and
2. around January 2007, when there was a conversion from the general
schedule (GS) to the National Security Personnel System (NSPS) pay
systems, complainant was converted to the YA-02 pay grade rather than
the YC pay grade, despite being an upper level supervisor, resulting in
lost wages; and despite repeated requests, she was not upgraded.2
The FAD dismissed the complaint for failure to timely initiate EEO
counseling. It reasoned that the last alleged act of discrimination
occurred in April 2008, but complainant did not initiate contact with
an EEO counselor until July 28, 2008, beyond the 45 calendar day time
limit to do so. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2). It dismissed
complainant's basis of reprisal because she alleged reprisal for
performing her duty of Privacy Act officer, not activity protected by
EEO statutes. It also dismissed the incidents of the negative appraisal3
and the denial of her request for reconsideration thereon for failure
to state a claim. It found complainant alleged these matters violated
merit system principals, not discrimination prohibited by EEO statutes.
On appeal, complainant initially conceded that she did not file her
"complaint" until July 2008, a reference to initiating the EEO process,
but argued she delayed out of fear that the Major with authority over
her area would retaliate if she did so. After the Major departed on July
10, 2008, complainant sought EEO counseling. Subsequently, complainant
reiterated her contention that she made below that she previously talked
to the agency Equal Opportunity Director. She writes she did so on
January 8, 2008. She cryptically writes that she discussed some of
her age discrimination issues. She contends that she could not pursue
an EEO claim because she was appealing her appraisal rating, and adds
she feared reprisal from the Major. She argues that while she raised
a violation of merit principles, this included her claim alleging sex
and age discrimination.
In opposition to complainant's appeal, the agency argues that the FAD
correctly dismissed the complaint. It argues that while complainant
contends the hostile work environment ended on July 10, 2008, that date
only referred to a change in command, and the final factual basis for
the hostile work environment alleged was in connection with the NATO
sub-registry inspection in April 2008. The agency argues that while
complainant talked to the Equal Opportunity Director on January 8, 2008,
she only raised concerns about her appraisal and inquired about the
reconsideration process, and did not indicate an intent to file an EEO
complaint on any bases. Complainant's January 2, 2008, reconsideration
request on her appraisal explicitly states it is not based on a belief of
prohibited discrimination. The agency reiterates that that complainant
alleged in her complaint that her negative appraisal and denial of her
request for reconsideration thereon violated merit system principles,
and adds the same is true for complainant's pay level.
An aggrieved person must seek EEO counseling within 45 days of
the date of the alleged discriminatory action, or in the case of a
personnel action, within 45 days of the effective date of the action.
29 C.F.R. � 1614.105(a)(1) & .107(a)(2). In an attachment to her
complaint complainant wrote the "prejudicial treatment" continued until
April 2008, when she passed the NATO sub-registry inspection, and after
April 2008 the harassment "eased up" in that there was a new flight
commander and the Major was leaving in July 2008. Complainant did
not allege any harassing incidents that occurred after April 2008.
As complainant did not initiate EEO counseling until July 28, 2008,
we find that she did not timely seek EEO counseling regarding claim 1.4
Complainant states that she contacted an agency Equal Opportunity Director
on or about January 8, 2008. While the Director is logically connected to
the EEO process, we find complainant exhibited no intent to initiate the
EEO process at that time. Floyd v. National Guard Bureau, EEOC Request
No. 05890086 (June 22, 1989); Allen v. United States Postal Service, EEOC
Request No. 05950933 (July 8, 1996). At one point complainant conceded
that did not file her "complaint," a reference to commencing the EEO
process, until July 2008. This is consistent with her taking no action
to file an EEO claim after talking to the Equal Opportunity Director
on January 8, 2008, until July 28, 2008. Further, while complainant
contends she could not pursue an EEO claim because she filed a request
for reconsideration on her appraisal, there is no regulatory reason we
can identify why she could not pursue her EEO claims at the same time.
Complainant's argument that her delay should be excused does not justify
delaying contacting an EEO counselor. Sztukowski v. Treasury, EEOC Appeal
No. 01960956 (February 4, 1997). Accordingly, we find complainant did
not initiate contact with an EEO counselor until July 28, 2008.
The FAD dismissed the reprisal basis in complainant's complaint because
it was based on her performing her duties as a Privacy Act Officer,
not EEO activity. The dismissal of the reprisal basis is affirmed for
the reason recited in the FAD. 29 C.F.R. � 1614.103.
The FAD dismissed claim 2 for failure to timely initiate contact with an
EEO counselor. Claim 2 alleges lower wages in violation of Title VII,
the ADEA, and the Equal Pay Act. In dismissing this claim, the FAD
reasoned that more than 45 calendar days elapsed since complainant last
requested that her pay level be switched from the YA to the YC grade.
The Lilly Ledbetter Fair Pay Act of 2009, Public Law 111-2, 123 Stat. 5,
became law on January 29, 2009. The Act is effective May 28, 2007, and
applies to all claims of discrimination in compensation under Title VII,
the ADEA, and Title I and Section 503 of the Americans with Disabilities
Act of 1990 and Sections 501 and 504 of the Rehabilitation Act pending
on or after that date. Regarding Title VII, it provides:
...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, when an individual
becomes subject to a discriminatory compensation decision or other
practice, or when an individual is affected by 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.
The Act uses language strikingly similar to the above for claims of
discrimination in compensation under the ADEA. Complainant contends
that she is still entitled to pay level YC. As complainant is regularly
paid wages, we find her compensation claim is timely. However, because
she did not initiate EEO counseling until July 28, 2008, the compensation
claim is only timely from June 13, 2008 forward, which takes into account
the 45 calendar day time period before she sought counseling. Similarly,
complainant's claim under the Equal Pay Act commences June 13, 2008.
Complainant's compensation claim states a claim. While complainant
alleged a violation of merit system principles, she is also alleged age
and sex discrimination on this matter.
The FAD is affirmed in part and reversed in part.
ORDER
The agency is ordered to process complainant's claim that she was
discriminated against based on her sex (female) and age (63), in
violation, as applicable of Title VII, the Equal Pay Act, and the
ADEA, when from June 13, 2008, onward, she was paid at YA-02 pay grade
rather than the YC pay grade in accordance with 29 C.F.R. � 1614.108.
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 (K1208)
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 (M1208)
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), 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 (T0408)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 (Z1008)
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
May 20, 2009
__________________
Date
1 The record does not reflect when the Unit Compliance Inspection
occurred, but loosely suggests it was sometime in 2007.
2 Some information on this claim was in a copy of a November 14,
2008, email by complainant to an agency Equal Opportunity Director.
Complainant submitted it on appeal.
3 While the FAD did not specifically dismiss the appraisal for untimely
EEO counseling, it dismissed the agency's subsequent partial denial of
her request to reconsider the appraisal for being untimely counseled.
4 Since we are dismissing claim 1 for failure to timely initiate contact
with an EEO counselor, we need not address the FAD's dismissal of a
portion of this claim for failure to state a claim. We note, however,
that while complainant alleged a violation of merit system principles
on some allegations in claim 1, a review of the record shows she is also
alleging discrimination based on sex and age regarding these matters.
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0120090609
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090609