U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Latonya D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120160059 Agency No. 1E-642-0015-15 DECISION On September 18, 2015, the Equal Employment Opportunity Commission (EEOC or Commission) received by mail Complainant's timely appeal from a final Agency decision (FAD) dated August 14, 2015, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Parcel Post Distribution Machine Clerk at the Agency's Kansas City, Kansas Network Distribution Center. On July 27, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race (Caucasian/White) and disability when on March 6, 2015, she learned that the Rehabilitation Modified position of Parcel Post Distribution Clerk she accepted on June 25, 2008, included higher level duties for which she was not paid. She contended that she performed the same duties as others who received higher pay. The Agency dismissed the complaint for failure to state a claim because it was a collateral attack on the a program administered by the Office of Workers' Compensation Programs (OWCP) - she was offered the modified job as restoration for a compensable injury, and hence her claim fell within the jurisdiction of the (OWCP). The Agency also dismissed the complaint for failure to timely initiate equal employment opportunity (EEO) counseling. It reasoned that the alleged discrimination occurred in 2008, but Complainant did not initiate EEO counseling until April 16, 2015, long beyond the 45 calendar day time limit. It also reasoned that Complainant was aware of the wage discrepancy by 2012. On appeal, Complainant refers to her contention below that she did not learn she was being paid lower wages until March 6, 2015, when there was a posting for the job of General Expeditor, PS-7 - the same duties she allegedly performed. She argues that her complaint is not a collateral attack on the OWCP process, i.e., she is not complaining about a workers' compensation claim, she is complaining about receiving lower wages for the same work others perform. In opposition to the appeal, the Agency argues that the FAD should be affirmed. Citing EEOC case law, the Agency argues that the validity of a modified job offer is within the exclusive jurisdiction of OWCP, and this does not state a claim within EEOC's jurisdiction. ANALYSIS AND FINDINGS This case is analogous to Complainant v. United States Postal Service, EEOC Appeal No. 0120150830 (May 5, 2015). Therein, the Complainant alleged that she was discriminated against based on her race, color, disability, and age when on April 15, 2014, she received a letter from OWCP stating that she had been offered a modified clerk position, and it was not within her medical restrictions. The EEOC found that to the extent Complainant was alleging that OWCP's determination that the Agency's job offer was suitable, this was a collateral attack on the OWCP process and hence failed to state a claim. But to the extent Complainant was alleging that the Agency's job offer failed to provide her with a reasonable accommodation, she set forth an actionable claim. We find that Complainant's complaint states a claim. Just as being provided a modified job offer as a result of an on-the-job injury does not waive the Agency's obligation to provide reasonable accommodation under EEO law, the same is true regarding unequal wages. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of an EEO 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 Agency improperly dismissed the complaint for untimely EEO Counselor contact. It failed to analyze the complaint under the Lilly Ledbetter Fair Pay Act. 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. Applying the Act, we find that Complainant timely initiated EEO counseling. The FAD is REVERSED. ORDER (E0610) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.2 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 (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations January 12, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 The Agency did not dismiss any portion of Complainant's complaint for stating the same claim in a prior complaint, and the record is not developed on this, so at this point we do not rule on the matter. But we note that in EEOC Appeal No. 0120142398 (Jan. 8, 2015), the EEOC found that Complainant filed a formal complaint on December 2, 2011, alleging in part that she was discriminated against when since December 22, 2010, she was assigned to perform dock clerk shipment work but was not paid the higher level of pay (of dock shipment work). In finding of no discrimination, the EEOC recited management testimony that Complainant did approximately 5% of the duties of a Dock Clerk. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160059 2 0120160059