01a40599
03-18-2005
Lois A. Delifus, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Lois A. Delifus v. Department of the Treasury
01A40599
March 18, 2005
.
Lois A. Delifus,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A40599
Agency No. 01-4100
Hearing No. 310-A2-5034X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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.
The final order implemented the decision of an Administrative Judge (AJ),
who dismissed the instant complaint for failure to initiate contact with
an EEO Counselor in a timely fashion. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
The record reveals that from July 1996 to July 2002, complainant was
employed as an Organizational Development (OD) Intern, at the GS-12
Level. The record also reflects that complainant filed grievances in
1997 and July 26, 2000, claiming that she was doing the same work as her
male co-workers who were paid a higher grade, GS-13. Complainant was
promoted to a GS-13 position effective July 30, 2000.
On September 14, 2000, complainant contacted the EEO office claiming that
she was discriminated against on the basis of sex (female). Informal
efforts to resolve complainant's concerns were unsuccessful. On December
28, 2000, complainant filed a formal complaint.
In the formal complaint form, complainant identified the date she became
aware of discrimination as July 5, 2000.
In a letter dated February 9, 2001, the agency requested that complainant
provide an explanation for not contacting an EEO Counselor until September
14, 2000. Complainant replied she was not aware that the agency's
actions were discriminatory until August 2000, when she learned of the
Equal Pay Act. Specifically, complainant stated that during the last
week of August, she was informed by two co-workers (Ms. S and Ms. R),
who filed similar grievances concerning the pay grade issue, that they
were advised by a LR Specialist to contact an EEO Counselor, and that
upon contacting the EEO Counselor, they were made aware of the Equal Pay
Act and the principle of �equal pay for equal work.� Complainant stated
that: �until talking with [Ms. S and Ms. R], I was aware only of the
grievable issues related to higher graded duties, assignment of work, etc.
Based upon information from [Ms. S] I contacted the EEO Counselor.�
On March 28, 2001, the agency accepted complainant's complaint for
investigation. Complainant's complaint was identified in the following
fashion:
Whether the agency discriminated against the Complainant on the basis of
her sex (female) when, between July 1996 and July 2000, the Complainant
was paid as a GS-12 Organizational Development Consultant while performing
work substantially equal to that performed by male GS-13 Organizational
Development Consultants.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ).
On July 28, 2003, the agency filed a motion for dismissal on the grounds
that complainant's initial contact with the EEO Counselor was untimely.
On August 22, 2003, the AJ granted the motion and in an Order of
Dismissal, dismissed the instant complaint on the grounds of untimely
EEO Counselor contact. The agency's final decision, dated September 29,
2003, adopted the AJ's Order and it is from this decision that complainant
now appeals.
In her Order, the AJ concluded that complainant had or should have had a
reasonable suspicion of unlawful employment discrimination, as the record
supported a determination that complainant asserted that since July 1996,
she became aware that she was performing work substantially equal to that
performed by higher graded males but was not receiving equal pay. The AJ
stated that on numerous occasions, complainant raised her concerns to
management and the union. Specifically, complainant filed grievances
concerning not receiving equal pay in1997 and on July 24, 2000.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Here, the record reflects that complainant listed on her formal complaint
the date that she suspected discrimination as July 5, 2000. Subsequently
complainant contends that she did not suspect discrimination until she
was told of the Equal Pay Act by two co-workers in August 2000.<1>
After a careful review of the record, we find that complainant
should have suspected discrimination well prior to August 2000.
Complainant's conversation with her co-workers on or about August 2000,
merely provided supportive facts for her suspicion of discrimination.
The record establishes that complainant raised the instant issue with
management and in meetings since she became aware in 1996, that she was
performing work substantially equal to that performed by higher graded
males but was not receiving equal pay. Complainant also participated in
three grievances, the first one in 1997, concerning the pay parity issue.
Complainant argues, for the first time on appeal, that she was unaware
of the time limits for contacting an EEO Counselor. However, prior to the
dismissal of the instant complaint, the agency provided complainant with
the opportunity to explain why she failed to contact an EEO Counselor
within the 45-day time limit. Complainant response did not indicate that
she was unaware of the 45-day time limit.
The Commission determines that the AJ properly dismissed the instant
complaint on the grounds of untimely EEO Counselor contact. Complainant
had or should have had, a reasonable suspicion of discrimination well
prior to her September 14, 2000 EEO Counselor contact. Complainant
failed to present adequate justification to warrant an extension of the
applicable time limits for contacting an EEO Counselor.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order
implementing the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 18, 2005
__________________
Date
1In her Order, the AJ stated that complainant
first learned of the Equal Pay Act in July 2000, and not in August 2000.
However, the Commission finds that the AJ's inadvertent reference to the
July 2000 date does not affect our disposition of this case, as the AJ
nonetheless properly determined that complainant had or should have had
a reasonable suspicion since 1996, when she became aware of purported
pay inequities.