Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency. Appeal No. 0120143013 Agency No. DFAS000772014 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated July 22, 2014, dismissing a formal 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 Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND Complainant is currently employed as an Accounting Technician at the Agency's Accounts Payable Operations, Accounts Payable Maintenance Division in Limestone, Maine. During the period at issue, Complainant was employed at an Agency facility in Qatar, United Arab Emirates. In April 2013, Complainant sustained a pelvic injury while lifting suitcases, when in transit to Afghanistan. Complainant underwent medical treatment in Germany, and was subsequently sent to the United States, for surgery in Maine. During this period, Complainant asserted that she was informed that her position in Qatar had been filled by another employee. On June 18, 2014, Complainant initiated EEO Counselor contact. On June 23, 2014, Complainant spoke with an EEO Counselor about her claims. Complainant reported that she had previously attempted to resolve the issues through the Agency and was advised in March 2014 that there was nothing that the Agency could do. It was then that Complainant sought assistance with the United States Office of Special Counsel (OSC).1 On July 2, 2014, Complainant filed the instant formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and age, when starting on or about June 1, 2013, as a result of the curtailment of her tour of duty in Qatar, her grade was changed from GS-0525-07 to GS-0525-06, reducing her salary. As a remedy, Complainant sought the lost wages incurred from having her grade changed. On July 22, 2014, the Agency issued a final decision dismissing the complaint. The Agency determined that the alleged discrimination occurred on or about June 1, 2013 when, Complainant's grade was changed. However, the Agency determined that that Complainant did not contact an EEO official until June 18, 2014. The Agency stated that the initial EEO contact was 350 and 382 days, respectively, after the incidents identified in claims 1 and 2. The Agency found that the initial contact was well beyond the 45-day limitation period for making timely EEO contact. The Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. 1614.107(a)(2). On appeal, Complainant argues that she had worked diligently with senior leadership at the Agency to resolve the issues and felt that leadership was sympathetic to her. Complainant states she was led to believe that senior leadership would be able to provide her with an appropriate resolution so that she would not need to file a complaint of discrimination. Complainant asserts that it was only after she was informed by senior leadership that the Agency could not assist Complainant, and she next sought consultation at the OSC. OSC's response recommended that Complainant seek resolution through the Commission. In response, the Agency argues that Complainant failed to contact an EEO Counselor within the established 45 day time frame and that she failed to establish good cause for her delay. ANALYSIS AND FINDINGS 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. In the instant matter, the Agency improperly dismissed Complainant's formal complaint on the grounds of untimely EEO Counselor contact. We find that the crux of Complainant's claim is that she is being subjected to unlawful compensation discrimination and is seeking back pay. The President signed the Lilly Ledbetter Fair Pact 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, or when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by the 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. In the instant matter, we find Complainant has been affected by the application of an allegedly discriminatory compensation decision or practice each time she received a paycheck, in this instance a paycheck which was purportedly less in grade, than what she determined she was owed consistent with her prior assignment in Qatar. Therefore, she has timely contacted an EEO Counselor within 45 days of receiving a paycheck. CONCLUSION Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108 et seq. 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 (S0610) 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 (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 January 30, 2015 __________________ Date 1 In June 2014, OSC informed Complainant that although she had alleged discrimination due to a disability, it was not OSC's intent to bypass the Commission in resolution of discrimination complaints, and that the Commission had proper jurisdiction to resolve such matters. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120143013 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120143013