0120111987
08-17-2011
Vanessa Gillotte, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Vanessa Gillotte,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111987
Agency No. 2003-0671-2010104583
DECISION
Complainant filed a timely appeal with this Commission from a final
Agency decision (FAD) dated February 7, 2011, 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.
BACKGROUND
Complainant entered on duty on August 16, 2009, as a Secretary (Typing),
GS-4 at the Agency’s South Texas Veterans Healthcare System facility in
San Antonio, TX. In its FAD, the Agency defined her complaint as alleging
she was discriminated against based on her race (Black) when since March
30, 2010, she was not promoted to the position of Secretary, GS-5. In a
footnote, it explained that due to a desk audit Complainant’s position
was upgraded to GS-5, and while a Request for Personnel Action Standard
Form 52 was made to upgrade her effective March 30, 2010, it was not
acted upon by Human Resources because she was allegedly erroneously hired.
By late November or early December 2009, Complainant was advised by the
Agency that she was an erroneous hire. Complainant contends that in
November 2009, she applied for a GS-5 position with the Department of
Defense, got a job offer in February 2010, but the Agency’s Acting
Chief 1 of Human Resource Management Service (HRMS) advised her that
because she was still an erroneous hire she could not be released to
work for the Department of Defense.
Around March 2010, Complainant’s position was reclassified to GS-5.
The record reflects that due to this reclassification, management in
Complainant’s department put her in for a promotion effective March
30, 2010. Complainant contends that the successor Acting Chief 2 of
HRMS still has not approved the promotion because of her continuing
status as an erroneous hire.
The record contains a June 2010 email to Complainant from Acting HRMS
Chief 2 that the Agency’s request to the Office of Personnel Management
(OPM) for a variation was not approved, and Complainant was still did
not have “status.” The Acting Chief wrote that they would look for
an available position through the Delegated Examining Unit (DEU) that is
equivalent to what she qualified for which she would need to apply. The
record contains procedures for regularization of an erroneous appointment
(making an illegal appointment legal). One procedure is asking the
servicing DEU for any certificates available in the same occupational
series and grade as the employee on the erroneous appointment, and if the
certificate of eligibles is not too old, the DEU may be able to amend
the certificate by re-constructing it by adding the employee thereto.
In an August 25, 2010, email to Complainant, the Acting HRMS Chief 2
wrote that OPM advised that for it to grant a variance, the Agency and
Complainant needed to attempt DEU twice; so they needed to try DEU twice.
The Agency dismissed the complaint for failure to timely initiate
EEO counseling. It reasoned that the proposed effective date of the
promotion was March 30, 2010, but Complainant did not initiate EEO
counseling until August 24, 2010, beyond the 45 calendar day time limit.
CONTENTIONS ON APPEAL
Complainant writes that she was among three employees who were hired in
August 2009 to the same department and were told by HRMS it made a mistake
which would be corrected. Complainant writes two of the employees are
black and one is white. She contends that the Agency corrected the white
employee’s hire, and he is no longer an erroneous hire. She writes
that because this situation took so long for HRMS to address, the white
employee received back pay because they were all working in higher graded
positions than they were being paid for. Complainant indicates that her
hiring status and that of the other black employee still have not been
corrected, and they have not received back pay. Complainant writes that
after the white employee continued to go to HRMS and complain, he got his
status changed and back pay. According to the EEO counselor’s report,
Complainant stated that the white employee was given his promotion and
pay in a matter of weeks while she has been waiting since March 30, 2010,
to receive her promotion and pay increase. Complainant writes that her
complaint is about the erroneous hire, and the Agency incorrectly defined
her complaint. She contends that she and the other black employee filed
their EEO cases with the exact same claim within a few days of each other,
and the case of the other black employee has gone forward.
In opposition to the appeal, the Agency argues that the Commission should
affirm its FAD.
ANALYSIS AND FINDINGS
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). The time limit to seek EEO
counseling shall be extended when an individual shows he did not know
and reasonably should not have known that the discriminatory action or
personnel action occurred. 29 C.F.R. § 1614.105(a)(2). 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 (Feb. 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.
The President signed the Lilly Ledbetter Fair Pay Act of 2009,
Pub. L. No. 111-2, 123 Stat 5 (“the Act”) on January 29, 2009. The
Act applies to all claims of discrimination in compensation, pending on or
after May 28, 2007, under Title VII, the Rehabilitation Act, and the ADEA.
With respect to Title VII claims, Section 3 of the Act provides that:
...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.
Section 3 of the Act also provides that back pay is recoverable for
Title VII violations up to two years preceding the “filing of the
charge,” or the filing of a complaint in the federal sector, where the
pay discrimination outside of the filing period is similar or related
to pay discrimination within the filing period.
Complainant learned that she was erroneously hired by late November or
early December 2009. She contends that the status of the white employee
who was erroneously hired around the same time as her was corrected.
Complainant indicated that within a few weeks of continually complaining
to HRMS, the white employee got his status changed and received his
promotion and pay increase, but she has been waiting since March 30,
2010, for her promotion and pay increase.
Complainant knew or reasonably should have known that the Agency’s
failure to correct her erroneous hire was allegedly discriminatory
after the status of the white employee was corrected and hers was not.
When Complainant contacted the EEO counselor on August 24, 2010, she
indicated that things had been fixed for the white employee in a matter
of weeks, but her situation remained unchanged since March 30, 2010.
Based on this, we find that Complainant waited more than 45 calendar
days after learning the white employee’s erroneous hire was corrected
to contact an EEO counselor regarding her own situation, and hence her
EEO contact on correcting the erroneous hire was untimely.
Applying the Lilly Ledbetter Fair Pay Act of 2009, we find that
Complainant’s claim that she was discriminated against when her pay
was not upgraded on March 30, 2010, is timely. We understand that on
appeal, Complainant stated the Agency incorrectly defined her complaint,
and it was about her erroneous hire. Complainant’s writings, however,
indicate she is also alleging that not receiving the wage increase and
back pay because of the erroneous hire was discriminatory, and we find
these matters are intertwined, i.e., an investigation on why Complainant
was not given a wage increase on March 30, 2010, will require looking
into why her erroneous hire has not been corrected.
The FAD is AFFIRMED in part and REVERSED in part.
ORDER
The Agency is ordered to process the remanded claim of whether Complainant
was discriminated against based on her race (Black) when she did not
receive a promotion and wage increase, pursuant to a reclassification of
her position, effective March 30, 2010, in accordance with 29 C.F.R. §
1614.108. The Agency shall acknowledge to the Complainant that it has
received the remanded claims 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 (T0610)
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 (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
August 17, 2011
__________________
Date
2
0120111987
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111987