Lois A. Delifus, Complainant,v.John W. Snow, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionMar 18, 2005
01a40599 (E.E.O.C. Mar. 18, 2005)

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.