Stuart D. Miller,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120081871
Agency No. HS07TSA002335
DECISION
Complainant filed a timely appeal with this Commission from the agency’s
decision dated March 3, 2008, dismissing his 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.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of age (54 years at time of incident
addressed herein) because the agency’s system of paying employees who
accept overseas assignments, such as himself, has an adverse disparate
impact on older employees who are close to retirement age. Specifically,
complainant alleges that employees who are assigned overseas (OCONUS)
lose Locality Pay which is included in basic pay to calculate “High Three
(3)” for retirement purposes. Complainant contends that every employee
at every location within the Continental United States of America (CONUS)
has at least 12.64% locality pay which is added to his/her pay to compute
“basic pay” for retirement purposes. When an employee is assigned to
an OCONUS location, he argues, his/her salary is reduced to an amount
12-30% below that of any employee in CONUS. Complainant states that as
a Washington, DC employee prior to being assigned overseas, his basic pay
was reduced by approximately 18% or $19,000. He alleges that the effect
on older workers, such as himself, who will retire from an overseas
assignment or within a year of returning to CONUS, is significantly
greater than it is on employees who will not be eligible to retire for
three or more years after returning to CONUS. He maintains the agency’s
pay system for overseas employees results in an effective decrease in
his “High Three (3)” pay calculation for retirement purposes of between
$15,000 and $19,000, effectively reducing his annuity by several thousand
dollars per year for the rest of his life, and between $100,000 and
$150,000 over the course of his life, based on life expectancy.
The agency dismissed the claim for untimely EEO Counselor contact, noting
that complainant learned of the pay discrepancy on September 1, 2006, but
did not contact an EEO counselor until August 3, 2007, which is beyond the
45-day statutory limit. On appeal, complainant argues that he is alleging
a continuing violation and his EEO Counselor contact was therefore timely.
The agency rests on the arguments outlined in the FAD.
Following a review of the record, we find that complainant’s EEO Counselor
contact was timely. We note that where, as in this case, a complainant
is alleging that an identified aspect of the pay structure itself is
discriminatory, each application of that discriminatory system in the
form of a new paycheck is an alleged intentional discriminatory act and
triggers a new EEO charging period. See Bazemore v. Friday, 478 U.S. 385
(1986). As complainant was still employed by the agency, still assigned
to an OCONUS location, and hence still receiving allegedly discriminatory
paychecks every two weeks at the time he contacted a Counselor, such
contact was timely. Accordingly, we reverse the FAD and remand the
claim to the agency for processing in accordance with the Order below.
ORDER (E0408)
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 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 (K0408)
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 19848,
Washington, D.C. 20036. 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 (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (R0408)
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 (Z0408)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
(“Right to File A Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 15, 2008
__________________
Date
2
0120081871
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081871
