U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Margeret M.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120180856 Agency No. DON186279300145 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's December 14, 2017 dismissal of 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 the Equal Pay Act of 1963 ("EPA"), as amended, 29 U.S.C. § 206(d) et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was working for another military agency; having transferred from her position as Attorney Advisor (GS-14, Step 4) in the Office of Counsel at the Agency's Supervisory of Shipbuilding, Conversion and Repair in Newport News, Virginia ("SUPSHIPNN") effective October 1, 2016. On November 16, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female), when: On October 6, 2017, she learned that her previous position, Attorney Advisor SUPSHIPNN, now held by a male employee, had been reclassified from a GS-905-14 to a DoD Civilian Acquisition Workforce Demonstration Project ("AcqDemo") NH-905-IV position without a control point, and pay was set at the equivalent of a GS-15, Step l. She alleged she performed the same duties when she held the same position in 2016 as a GS-14 employee, yet was denied promotion to GS-15. As an Attorney Advisor at SUPSHIPNN from June 2014 through October 2016, Complainant asserted that her workload and duties reflected those of a GS-15 level employee, even though she was GS-14. Complainant attempted to obtain a GS-15 position in January 2016, applying for her supervisor's ("S1") (male) position, SUPSHIPNN Counsel, when he decided to resign. In April 2016, Complainant learned that she had been passed over in favor of a male candidate from outside their office. Complainant then submitted a proposal, requesting that Management approve an accretion of duties promotion. S1 emailed Management on Complainant's behalf, arguing that she warranted GS-15 pay based on her performance and Agency policy. Complainant's request was denied on May 12, 2016 because of a salary cap. Complainant contacted an EEO Counselor about both her nonselection for the supervisor position and the denied accretion of duties promotion, alleging that the Agency discriminated against her on the basis of sex (female, pregnancy). The matter is currently pending a hearing before an EEOC Administrative Judge ("Complaint 1").2 In October 2016, Complainant transferred to a different agency into another GS-14 Attorney Advisor position).3 The resulting vacancy announcement listed the Attorney Advisor, SUPSHIPNN Office of Counsel, as a GS-14 position. In January 2017, the position was filled internally by a candidate ("C1") (male), who had already been working for the Agency as an Attorney Advisor, GS-14, Step 5 in another facility. In March 2017, the Agency converted into a pay banding system known as the Acquisition Demonstration Project ("AcqDemo"). GS-14 and GS-15 Attorney Advisors converted to "NH-4," and pay adjustments and raises were calculated differently than before. In July 2017, a decision was made by AcqDemo to remove the "control point" (salary cap) from NH pay bands, which Complainant had been subject to when she was an Attorney Advisor at SUPSHIPNN. According to the Agency, C1 continued to earn what he would have earned as a GS-14. Complainant contends that because of the new banding system, C1 earned the equivalent of a GS-15, Step 1. The Agency dismissed Complainant's complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. ANALYSIS AND FINDINGS In relevant part, 29 C.F.R. § 1614.107(a)(1) provides that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). As a preliminary matter, we find the Agency's reasoning that Complainant could not be "aggrieved" because she was no longer an Agency employee and she "voluntarily" left the Agency to be incorrect. Notwithstanding Complainant's challenge to the "voluntary" nature of her departure, excluding former employees from filing complaints would subvert the purpose of the statutes, particularly the EPA, at issue here. We also find the Agency's articulated reasons for the change in compensation for Complainant's prior Attorney Advisor position goes to the merits of the formal complaint, and is irrelevant to the procedural issue of whether Complainant stated a justiciable claim. See Ray v. USPS, EEOC Appeal No. 0120083541 (Jul. 26, 2012) citing Osborne v. Dep't Treasury, EEOC Request No. 05960111 (Jul. 19, 1996). Regardless, we agree with the Agency's determination that Complainant failed to state a claim on alternate grounds, based on the related EEO complaint information the Agency provided. An Agency shall dismiss a complaint that "states the same claim that is pending before or has been decided by the agency or Commission." 29 C.F.R. § 1614.107(a)(1). Both the instant complaint and Complaint 1 allege that Complainant was denied GS-15 pay while she worked as an Attorney Advisor at SUBSHIPNN. Unlike Complaint 1, the instant complaint focuses on new evidence, namely C1's compensation in her prior position, and invokes the EPA, seeking equal pay for equal work. However, "finding a new comparison [employee] or arguing a different theory of law does not create a new claim." Doleshal v. HHS, EEOC Appeal No. 01A40020 (July 29, 2004) (finding the complainant's nonpromotion claim, which was decided in a previous complaint, failed to state a claim, even though he raised his new complaint under the EPA and offered another comparator). Complainant's new arguments and the evidence provided for the instant complaint, do not fundamentally change the nature of her previously filed claim in Complaint 1. As this complaint raises the same matter as her previously filed complaint, the instant complaint must be dismissed for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). If she has not done so already, Complainant may wish to seek to amend Complaint 1, currently pending before the Administrative Judge, to include her EPA claim. Accordingly, we AFFIRM the Agency's decision dismissing Complainant's complaint. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 27, 2018 __________________ 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 EEOC Hearing No. 430201700261X, Agency No. 166279302687. 3 In September 2016, Complainant filed another EEO Complaint, alleging that the supervisor who replaced S1 and others in her command chain created a hostile work environment based on her sex and pregnancy, so that her decision transfer out of SUPSHIPNN was constructive discharge. Agency No. 176279300851 (Nov. 30, 2016) (finding no discrimination). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120180856 6 0120180856