_________________, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency. Appeal No. 0120111817 Agency No. 4E-640-0121-10 DECISION Complainant filed a timely appeal with this Commission from the Agency's final order dated January 31, 2011, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. BACKGROUND Complainant initiated contact with an EEO Counselor on September 22, 2010. At the time of events giving rise to this complaint, Complainant worked as a Registry Clerk at the Agency's work facility in Springfield, Missouri. On January 7, 2011, Complainant filed a formal complaint wherein he claimed that the Agency subjected him to discrimination on the bases of religion (Non-Denomination) and in reprisal for prior protected activity when: 1. On September 5, 2009, Complainant was given a direct order to go to the office for a job discussion on attendance. 2. On September 18, 2009, Complainant was given a Letter of Warning for Failure to Follow Instructions. 3. On September 21, 2009, management failed to protect Complainant's privacy when he observed his Letter of Warning lying face up on the copier. 4. On October 29, 2009, Complainant received a Notice of 7-Day Suspension for Unacceptable Conduct. 5. From November 2000 through the present, management refuses to follow guidelines for the Registry Cage and management threatened to remove Complainant from the Registry Cage. The Agency dismissed the entire complaint pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds that Complainant failed to initiate contact with an EEO Counselor in a timely manner. The Agency stated that Complainant's EEO contact on September 22, 2010, was more than 45 days after the alleged discriminatory incidents occurred. The Agency also dismissed claims (4-5) pursuant to 29 C.F.R. § 1614.107(a)(1) on the grounds of failure to state a claim. With regard to claim (4), the Agency stated that the seven day suspension was rescinded as a result of a grievance settlement dated December 2, 2009. As for claim (5), the Agency determined that this matter had been arbitrated through the grievance process. The Agency stated that this claim constituted an impermissible collateral attack on the grievance process. The Agency also dismissed claim (5) on the grounds of failure to state a claim on the rationale that Complainant did not suffer a personal loss or harm with respect to a term, condition or privilege of employment as a result of the Agency's action. Additionally, claim (1) was dismissed on the grounds of failure to state a claim as the Agency determined that there was no claim by Complainant that the discussion was recorded in any personnel or supervisory files, or that it can be used as a basis for any subsequent disciplinary action. On appeal, Complainant acknowledges that claims (1-4) were raised with an EEO Counselor in an untimely manner. With regard to claim (5), Complainant contends that management's refusal to follow guidelines for the Registry Cage has resulted in him being underpaid with each paycheck. Complainant maintains that the resolution of a grievance reveals that he should have been compensated as a high value clerk due to his individual responsibility. According to Complainant, management has obstructed the pay scale required by regulation for the additional responsibilities assumed by the register clerks. Complainant also disputes the Agency's determination that his complaint constitutes a collateral attack on the grievance process. With regard to the resolution of a grievance filed in 2006, Complainant states that he sought clarification on area of responsibility versus individual responsibility and requested that the Union be permitted to make these designations. Complainant notes that the Agency resolved the grievance by agreeing to provide clarity and that it posted a letter explaining the responsibility rules. According to Complainant, the clarification established that he and the other Registered Clerks had individual responsibility and that they were getting paid less than they should given the amount of responsibility they had. Complainant states that he is not challenging the grievance resolution as it granted his requested relief by providing the clarity he sought. Complainant argues that claim (5) states a claim since he maintains that he was not paid in accordance with the work he was performing. ANALYSIS AND FINDINGS With regard to claims (1-4), the record supports the Agency's determination that Complainant's contact of an EEO Counselor was after the 45-day limitation period and thus untimely. The record reflects that Complainant initiated contact with an EEO Counselor on September 22, 2010. The dates of the relevant incidents set forth in claims (1-4) ranged from September 5, 2009 to October 29, 2009. Accordingly, the Agency's dismissal of claims (1-4) on the grounds of untimely EEO contact was proper. 1 With regard to claim (5), upon review of the record, we find that the Agency did not accurately frame this claim. It is clear from the complaint that Complainant raised a claim that his position had been classified in a discriminatory manner, resulting in him receiving less pay than he should. Complainant claims that he is being subjected to unlawful compensation discrimination and he is seeking back pay. The Agency's dismissal of claim (5) on the grounds of untimely EEO Counselor contact was improper. 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 Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et seq., Title I and Section 503 of the Americans with Disabilities Act of 1990, and Sections 501 and 504 of the Rehabilitation Act of 1973. With respect to Title VII claims, Section 3 of the Act provides that: *2... 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 become subject to a discriminatory compensation decision or other practice, 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 of two years preceding the filing of the charge, or the filing of a complaint in the federal sector, where the pay discrimination outside the filing period is similar or related to pay discrimination within the filing period. In the instant matter, we find that Complainant was affected by the application of an allegedly discriminatory compensation decision or practice each time he received a paycheck and thus timely contacted an EEO Counselor within 45 days of receiving a paycheck. See Mitchell v. Department Co. V. Williams Affairs, EEOC Appeal No. 0120100361 (April 6, 2010)(applying Ledbetter Fact Pay Act to an allegation of compensation discrimination when Complainant was hired at a lower grade classification). As for the Agency's dismissal on the grounds of failure to state a claim, we find that this claim concerns Complainant's compensation and thus involves a term, condition, or privilege of his employment. With respect to the issue of whether this claim constitutes a collateral attack on the grievance process, we observe that a grievance resolution dated March 26, 2007, referenced the posting of a letter of Area Responsibility per Handbook DM-901. This letter dated February 21, 2007, stated that the Registry Section is identified as a unit having area responsibility. The letter further stated in part "however all service counter activities and dispatching activities, internal and external to the Registry Section, will continue to be conducted with individual accountability." We do not consider the raising of a claim of a discriminatory position classification as a collateral attack on the resolution of the grievance. 2 Complainant is arguing that the responsibilities of his position are conducted with individual accountability and thus are high value, warranting a higher level of pay. Accordingly, the Agency's dismissal of claim (5) was improper. CONCLUSION The Agency's dismissal in its final order of claims (1-4) on the grounds of untimely EEO contact is AFFIRMED. The Agency's dismissal of claim (5) on the grounds of untimely EEO contact and failure to state a claim is REVERSED. Claim (5) is hereby REMANDED to the Agency for further processing pursuant to the Order below. ORDER (E0610) The Agency is ordered to process the remanded claim (Claim 5) 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 (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: March 29, 2012 ______________________________ _________________ Carlton M. Hadden, Director Date Office of Federal Operations 1 In light of our affirmance of the Agency's dismissal of claims (1) and (4) on this grounds, we need not address the Agency's alternative grounds for dismissal of these claims. 2 The record indicates that Complainant raised the issue of his pay in a subsequent grievance but that the matter was arbitrated and the grievance withdrawn. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120111817 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120111817