U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Selene M.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation, (Federal Transit Administration), Agency. Appeal No. 0120170303 Agency No. 2016-27001-FTA-02 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 19, 2016, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and 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 Financial Economist for the Agency in Washington, D.C. On July 8, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On August 23, 2016, Complainant filed a formal EEO complaint alleging the Agency subjected her to discrimination on the bases of race, sex, disability, age, and in reprisal for prior EEO activity when: she was denied a within-grade pay increase as of September 2015 due to an "unacceptable" rating dated August 21, 2014. The record reflects that in June 2015, Complainant had been removed from Agency employment. Following her Merits System Protection Board appeal, the Agency cancelled the removal action and restored Complainant to her Financial Economist position on June 10, 2016. In its September 19, 2016 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 8, 2016, which it found to be beyond the 45-day limitation period from the September 2015 denial of the pay increase. The instant appeal followed. Complainant, on appeal, states that her July 8, 2016 EEO contact was timely and that she was subjected to ongoing harassment. Specifically, Complainant stated that on July 6, 2016, she sent an email to the Director of Human Services inquiring about a Within-Grade Increase (WIGI) to her salary. Complainant further stated that in her July 8, 2016 response, the Director admitted that she "was entitled to a WIGI as of September 6, 2015, but claimed that the Complainant was ineligible for a WIGI pay increase because [supervisor] had rated the Complainant's performance as 'unacceptable' in August of 2014." 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. Here, the Agency improperly dismissed the formal complaint on the grounds of untimely EEO Counselor contact. We determine that the essence of Complainant's claim is that she has been discriminatorily denied a salary increase since September 2015. 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 discrimination when, as a result of a discriminatory performance rating, she was paid less than other employees who she claims received the salary increase. 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). We REVERSE the Agency's final decision dismissing Complainant's formal complaint for untimely EEO Counselor contact, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E1016) 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 was issued. 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 was issued, 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 (M0416) 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 11, 2017 __________________ 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 0120170303 5 0120170303