U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lynne E.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120160881 Agency No. 2003-0756-2015104414 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 10, 2015, dismissing a formal complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Registered Nurse Practitioner at the Agency's Veterans Affairs Medical Center in El Paso, Texas. On July 15, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On September 29, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the basis of age when: ongoing since July 2007, she learned her request for a salary increase was denied. In its December 10, 2015 final decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on July 15, 2014, which it found to be beyond the 45-day limitation period. The Agency determined that any alleged incident occurring before May 31, 2015 is beyond the 45-day limitation period. Specifically, the Agency noted that on March 24, 2009, Agency management completed Complainant's original "Board Action" and according to Complainant's statement to the EEO Counselor, she has been working with Human Resources and Nurse Management about her salary concerns for the last five years. The Agency determined that Complainant should have known about management's denial of her salary increase request before her July 15, 2015 EEO contact for the following reasons: (1) on April 10, 2013, management submitted a memorandum regarding a 12% incentive because management believed that Complainant was "likely to leave Federal service without [the] incentive;" (2) on June 2, 2013, she received a 12% Retention Incentive bonus; (3) on January 12, 2014, she received a pay adjustment; (4) on January 2, 2015, she was assigned into her current position and her salary remained the same; (5) on January 11, 2015, she received a pay adjustment; (6) on March 22, 2015, she received a Within Grade Increase; and (7) on June 28, 2015, she received a pay increase. The Agency noted in the EEO Counselor's Report, the EEO Counselor stated that Complainant told her that her EEO contact was untimely because Complainant did not learn about management's denial of her request for a salary increase until July 15, 2015, when the Nurse Executive told her the only way her boarding error could be corrected is for her to resign from her position for approximately one year and then reapply as a Registered Nurse. The instant appeal followed. In response to Complainant's appeal, the Agency argues that Complainant was aware of the 45-day limitation period to initiate EEO contact because she attended training and EEO Poster 72 was on display at the facility where Complainant worked, addressing the counseling period, and informing employees to contact the Agency's EEO office if interested initiating EEO Counselor contact. 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 personnel action, within forty-five (45) days of the effective date of the action. As an initial matter, we find that a fair reading of the complaint in this case, as well as the related EEO counseling report and statement on appeal, shows that the Agency improperly defined Complainant's claim. We determine that the essence of Complainant's claim is that she has been discriminatorily denied a salary increase since July 2007. The Agency did not analyze the timeliness of the instant EEO Counselor contact under the Lilly Ledbetter Fair Pay Act of 2009 (Ledbetter Act), Pub. L. No. 111-2, 123 Stat. 5. The Ledbetter Act applies to all claims of discrimination in compensation, pending on or after May 28, 2007, under Title VII, the Rehabilitation Act, and the Age Discrimination in Employment Act (ADEA). The Ledbetter Act was passed in response to the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). In brief, the plaintiff, Ledbetter, had filed a private sector charge with the Commission several months prior to her retirement. In her charge, she alleged that she had been paid less than her male counterparts because of her sex over the course of almost 20 years. The Supreme Court held in Ledbetter that the period for filing an EEOC charge for pay discrimination began when the pay-setting decision was made. Plaintiff Ledbetter's claim was therefore deemed late. Following the Ledbetter decision, Congress passed the Ledbetter Act determining that the Supreme Court's decision had been unduly restrictive regarding the time period within which victims of compensation discrimination could challenge and recover for discriminatory compensation decisions or other practices. Here, Complainant is alleging in essence that the Agency subjected her to age-based discrimination when she was paid less than younger and less experience nurses. Complainant claimed she was treated differently than other affected employees who she claims received salary increase. In her complaint, Complainant stated younger nurses "with equal qualifications and less experience have been boarded at rates higher than my current ongoing salary depreciating the value of my tenure and experience level. Now I am in a specialist position alone and my salary has not been adjusted [commiserate] with my level of experience and responsibilities." Complainant initiated EEO counseling on July 15, 2015. Pursuant to the Ledbetter Act, Complainant's contact was timely. It was made within 45 days of receipt of her last paycheck. See Williams vs. U.S. Postal Service, EEOC Appeal No. 0120100794 (May 4, 2010) (contact timely made within 45 days of having received a paycheck). The Agency's final decision dismissing the formal complaint is REVERSED. We REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ordered to process the remanded claim (denial of a salary increase) in accordance with 29 C.F.R. § 1614.108 et seq. 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 (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 April 14, 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 0120160881 2 0120160881 6 0120160881