U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicolasa M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120170652 Agency No. 4F-956-0099-16 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 22, 2016, 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. BACKGROUND During the period at issue, Complainant worked as a Postmaster at the Agency's facility in Sutter Creek, California. On November 10, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), age, and in reprisal for prior protected EEO activity.2 In its final decision, dated November 22, 2016, the Agency framed Complainant's claim in the following fashion: On July 19, 2016, [Complainant] received a letter indicating that [her] promotional pay increase in June 2012 of 2% would not be adjusted. The Agency dismissed this claim on the grounds of untimely EEO Counselor contact. The Agency reasoned that Complainant did not contact an EEO Counselor until August 4, 2016, more than four years after the alleged incident in which Complainant was denied her requested pay increase of 5 percent. The Agency, in its final decision, noted that Complainant also alleged dissatisfaction with the processing of her current complaint and that this matter was handled by the appropriate Agency official. The instant appeal followed. On appeal, Complainant asserts that the instant complaint involves two claims. Complainant asserts that she is alleging discriminatory compensation and that she is alleging reprisal based on statements made by an EEO Counselor. Complainant states that these statements were made in an effort to deter her from engaging in the EEO process ANALYSIS AND FINDINGS The Agency improperly dismissed Complainant's discriminatory compensation claim on the grounds of untimely EEO Counselor contact. Complainant's EEO Counselor contact was timely under the Lilly Ledbetter Fair Pay Act (Ledbetter Act), Pub. L. No. 111-12, 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. With respect to Title VII claims, Section 3 of the Ledbetter 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. Complainant initiated EEO contact on August 4, 2016, Complainant's EEO contact was timely because, as a current Agency employee, it was within 45 days of her last paycheck. Therefore, we find that the Agency improperly dismissed Complainant's compensation claim for untimely EEO Counselor contact. We also find that the Agency improperly dismissed Complainant's claim that she was subjected to unlawful retaliation when the EEO Counselor made negative comments to her regarding her participation in the EEO process. While the Agency found this claim to be alleging dissatisfaction with the processing of Complainant's complaint, we disagree. We find, instead, that Complainant is alleging that the EEO Counselor's comments constituted per se reprisal. In her pre-complaint paperwork, Complainant asserts that the EEO Counselor made various comments to her in an effort to try to deter her from pursuing the EEO process. Specifically, Complainant states that the EEO Counselor stated, "you are putting your name out there, putting a negative on you;" and that the EEO Counselor told her that this could hinder her or have ramifications for any promotions Complainant may pursue in the future. EEOC Regulation 29 C.F.R. § 1614.105(g) provides that the EEO Counselor shall not attempt in any way to restrain the aggrieved person from filing a complaint. We have held that comments on their face that discourage an employee from participating in the EEO process are evidence of per se retaliation. See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998). Based on the foregoing, we find that Complainant is alleging that she was subjected to per se retaliation based on the alleged comments by the EEO Counselor. Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint 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 claims in accordance with 29 C.F.R. § 1614.108. 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 March 24, 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 While the Agency only listed reprisal as a basis in its final decision, a review of the record reflects that Complainant is also raising sex and age as bases with respect to her discriminatory compensation claim. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120170652