In Albritton v. U.S. Postal Service, Appeal No. 01A44063 (December 17, 2004), the Equal Employment Opportunity Commission (“EEOC”) reversed the agency’s decision after determining that the administrative judge (“AJ”) erred in finding the complainant’s wage-related complaint should be dismissed for untimely EEO contact.
Joan Albritton, an employee with the U.S. Postal Service, filed a formal complaint of discrimination on April 17, 2003, alleging that she had been discriminated against on the bases of sex, age, and disability when, on January 14, 2003, she became aware that a junior co-worker in her pay location was being paid at a higher scale. The agency’s June 10, 2003, letter accepted that claim for investigation. After receiving the report of investigation for her complaint, Ms. Albritton requested a hearing before an EEOC AJ.
In an April 19, 2004, order of dismissal, the AJ determined that although Ms. Albritton claimed that she became aware of the pay inequities on January 14, 2003, the record contained evidence that she suspected discrimination as early as November 25, 2002. Ms. Albritton did not contact the EEO counselor about her suspicions until January 22, 2003. EEOC regulations at 29 C.F.R. § 1614.105(a)(1) state that federal employees must bring complaints of discrimination to the attention of the EEOC Counselor within 45 days of the date of the matter alleged to be discriminatory, or within the effective date of the personnel action taken. The AJ found that more than 45 days had passed since Ms. Albritton reasonably suspected discrimination and, as a result, dismissed Ms. Albritton’s complaint for untimely EEO contact. On April 27, 2004, the agency issued a final agency decision fully implementing the AJ’s decision. Ms. Albritton appealed this decision to the EEOC’s Office of Federal Operations.
The commission held that the AJ had improperly dismissed Ms. Albritton’s complaint for untimely EEO contact. The commission interpreted Ms. Albritton’s complaint as alleging that she had been continuously paid a lower salary based on her sex, age, and disability, in violation of Title VII of the Civil Rights Act of 1964. The commission cited Bazemore v. Friday, 478 U.S. 385, 396 (1986), a Supreme Court case which held that each week’s paycheck that delivers less to an African American employee than to a similarly situated white employee is a wrong that is actionable under Title VII. The commission also looked to previous EEOC case law, citing to the case of Englund v. EEOC, Appeal No. 01A10826 (July 13, 2001), in which the commission found that the allegations of a discriminatory failure to promote the complainant stated a recurring violation for each day that the agency failed to promote the complainant after the eligibility date. The commission held that because Ms. Albritton contacted an EEO counselor within 45 days of receiving a paycheck, her claim was timely.
The commission’s holding in Ms. Albritton’s case is in following with the commission’s previous decisions regarding similar allegations of Equal Pay Act (“EPA”) violations. Although EPA violations and allegations of discrimination in pay in violation of Title VII are very similar, there are also very basic and important differences between these types of cases. Under Title VII, it is necessary to establish “discrimination” as the basis for the inequity in pay. Under the EPA, it is not necessary to prove a discriminatory intent; after establishing that there exists a difference in pay between two similarly situated employees of the opposite sex, the analysis is over. Another important distinction between these types of claims is that, as previously mentioned, the EPA prohibits sex-based wage discrimination, whereas pay discrimination in violation of Title VII prohibits discrimination based on any basis protected under Title VII.
For federal employees, the commission’s decision in Albritton means that employees who are alleging that they are being paid differently than other employees who are not of their protected class (race, color, religion, sex, national origin, age, and/or disability) have flexibility in the time within which they must initiate EEO contact. Although federal employees should always seek to initiate EEO contact as soon as they become aware of discrimination, for allegations of pay discrimination in violation of Title VII, federal employees’ claims will be timely if they initiate EEO contact within 45 days of a pay period in which the discriminatory unequal pay has occurred. However, a delay in contacting an EEO counselor may result in some loss of back pay if the employee ultimately prevails in the case.
** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to www.passmanandkaplan.com. **
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