_________________ v. Department of the Navy 01A13830 September 25, 2002 . _________________, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency. Appeal No. 01A13830 Agency No. 000464A003 DECISION _________________ (complainant) timely initiated an appeal from a final agency decision concerning 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, as amended, 29 U.S.C. § 206(d) et seq. The appeal is accepted pursuant to 29 C.F.R. § 1614.405. For the following reasons, the Commission reverses, in part, vacates, in part, and affirms, in part, the agency's final decision. The record reveals that during the relevant time, complainant was employed in a number of different positions at the agency's Naval Explosive Ordinance Disposal Technology Division (NAVEODTECHDIV) in Indian Head, Maryland. Complainant sought EEO counseling and subsequently filed a formal complaint on April 3, 2000, alleging that she was discriminated against on the basis of sex (female) when: 1) on February 9, 2000, she was involuntarily demoted from a supervisory/management position to a non-supervisory position; 2) on March 10, 2000, she was subjected to a hostile work environment when the Executive Officer sent her an electronic mail advising her that "you need to learn how to coordinate within our organization. Hope this little tutorial has been of assistance."<1> 3) On July 9, 1999, she discovered that the duties and responsibilities she performed while serving as the Deputy Director of JUXOCO at the GS-14 level from October 24, 1998 through October 26, 1999, were virtually identical to that performed by her GS-15 male predecessors; 4) On July 9, 1999, she learned that her male predecessor was assigned to a permanent position as Director/Deputy Director, GS-15 at JUXOCO, whereas she held the position as a GS-14, not to exceed one year; 5) In April 1999, a male co-worker was assigned to the position of Director of Acquisition Divisions, at the GS-14 level, whereas she had held the position as a GS-13; 6) From May 10, 1996 through October 1998, while serving as the Director of the Acquisition Division, GS-13, she performed substantially the same duties as her GS-14 male predecessor and as the male who held a similar position as the Director of a different division of the same department, but was promoted to a GS-14 position; and 7) On December 12, 1997, she was denied a 15% Retention payment to remain at the agency, whereas male employees were offered retention pay through recruitment and to remain at the agency. On April 24, 2000, the agency dismissed Issues 3-7 above for untimely EEO Counselor contact, and accepted Issues 1 and 2 for investigation. At the conclusion of the investigation, complainant was provided a copy of the investigative file and requested a final agency decision. Throughout the investigation, as well as in her request for a FAD, complainant contended that the agency mischaracterized her complaint. Specifically, complainant noted that in addition to claiming a Title VII and EPA violation during her tenure as Deputy Director of JUXOCO (October 24, 1998 through October 26, 1999) and during her tenure as Director of the Acquisitions Division (May 10, 1996 through unspecified date in 1998), and a hostile work environment on March 10, 2000 due to an email she received, she claimed that she was subjected to a continued practice of gender discrimination in violation of Title VII and EPA from May 10, 1996 through the present. She argued that her claims amount to a continuing violation, noting that she contacted an EEO counselor within 45 days of her involuntary re-assignment to a non-supervisory position on February 9, 2000. She argued that there is an "interrelationship between the incidents both inside and outside the time frame." She further alleged that she had contacted the Commanding Officer of NAVEODTECHDIV (CO) on August 12, 1999 about her claims of discrimination. The agency issued a FAD on April 30, 2001. Therein, the agency reiterated its conclusion that certain issues raised by complainant in her complaint were untimely, even considering a continuing violation analysis. The agency noted that complainant acknowledged that she suspected discrimination long before she contacted an EEO Counselor and that she first contacted a counselor in February 1998 concerning discrimination she alleged she was facing in her position as the Director of Acquisitions, but decided not to pursue the matter. The agency further noted that complainant did not contact an EEO Counselor again until February 9, 2000 and that she failed to establish that a nexus existed between her timely claim involving the "involuntary demotion" and the previous incidents. The agency noted that this would be true even if complainant's allegations were to be characterized in the manner she described in her response to the April 24, 2000 dismissal letter. The agency then determined that complainant failed to establish by a preponderance of the evidence that she was subjected to discrimination or retaliation in regard to Issues 1 and 2. The agency noted that the responsible management official articulated a legitimate non-discriminatory explanation for complainant's placement in a non-supervisory position. Specifically, the head of the Research and Development Department, i.e., complainant's department head (HD), testified that the downgrade was the result of a division-wide reorganization and that complainant failed to apply for any of the three supervisory positions available upon completion of the reorganization. The agency further concluded that complainant failed to establish that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. The agency noted that the email she received on March 10, 2000, was an isolated incident and that complainant provided no evidence that it was motivated by her sex or prior EEO activity. On appeal, complainant argues that case files pertaining to the Merit Systems Protection Board and Court of Appeals for the Federal Circuit cases of her former supervisor be incorporated for review. She raises no other contentions. The agency asks that its FAD be affirmed. ANALYSIS AND FINDINGS We first turn to the agency's procedural dismissals of Issues 3 and 4. A review of the record establishes that despite the agency's somewhat different characterization of Issue 3, complainant alleged therein that she was subjected to sex discrimination in violation of Title VII and the EPA during her October 1998 - October 1999 tenure as Deputy Director of JUXOCO when she was denied equal pay for doing substantially equal work as male employees. The agency improperly dismissed this claim. The agency acknowledged that on August 12, 1999, while still serving in this position, complainant raised her discrimination claim with the “Activity EEO Officer.” Complainant testified that this individual, who was also the Commanding Officer of NAVEODTECHDIV (CO), told her that he would look into her claim. The agency does not dispute this testimony. The Commission finds that complainant's allegation of unequal wages is a recurring violation, meaning that complainant was aggrieved each time she received a paycheck that allegedly provided her with wages unequal to those received by male employees doing substantially equal work. See, e.g., Englund v. Equal Employment Opportunity Commission, EEOC Appeal No. 01A10826 (July 13, 2001) (holding that a new violation occurs every day the agency fails to promote the complainant after his eligibility date). Accordingly, as complainant contacted CO within 45 days of her receipt of such a paycheck, her claim that she was discriminated against in pay while serving as Deputy Director of JUXOCO was timely raised and should not have been dismissed. The agency's dismissal of Issue 4 was also improper. Complainant alleged that she learned on July 9, 1999, that her male predecessor in the Deputy Director of JUXOCO position was appointed to the position permanently as a GS-15, as compared to the GS-14 temporary appointment she was currently serving. As noted above, complainant contacted an EEO officer on August 12, 1999, while still serving in this position and within 45 days of learning that she had been allegedly subjected to treatment different than her male predecessor. This allegation was therefore timely raised and should not have been dismissed. The agency's dismissal of Issues 3 and 4 is therefore REVERSED and the matter REMANDED in accordance with this decision and the ORDER below. We find, however, that the agency properly dismissed Issues 5-7. The Commission has held that all complainants must act with due diligence in the pursuit of their claims of discrimination or the doctrine of laches will be applied. The doctrine of laches is an equitable remedy under which an individual's failure to diligently pursue her actions can bar her claims. See O'Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990). Here, complainant acknowledged that she contacted an EEO Counselor about the circumstances surrounding Issues 5-7 in February 1998, and that she then decided against continuing with the EEO process, thereby abandoning her claims. Complainant's contact with CO in August 1999 and an EEO Counselor in February 2000 was thus an attempt to resurrect claims after she had purposefully abandoned them. We find that the doctrine of laches is applicable in this situation. The agency's dismissal of Issues 5-7 is therefore AFFIRMED. Although the agency conducted an investigation and reached the merits of Issues 1 and 2, we find that it would be inappropriate to bifurcate these issues from the remanded issues. Complainant alleged that actions described in Issues 1 and 2 are part of a continuous pattern of sex discrimination related to her claim that she was subjected to sex discrimination while serving as Deputy Director of JUXOCO. She argues that the motivation of each action was to deny her promotions/salary equal to that of male employees of NAVEODTECHDIV. In these circumstances, we find it proper to VACATE the agency's decision on Issues 1 and 2 and REMAND the issues to be considered together with complainant's claim that she was discriminated against during her tenure as Deputy Director of JUXOCO. To do otherwise would result in an improper fragmentation of the claims raised by complainant alleging a pattern of discrimination. As a final matter, we note that CO, one of the named responsible management officials, was involved in the processing of complainant's complaint. Agencies must avoid conflicts of position or conflicts of interest, as well as the appearance of such conflicts. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-100), as revised November 9, 1999, 1-2. Clearly, it is a conflict of interest on its face for an EEO officer to be responsible for processing a complaint in which he has been charged with participating in discrimination against the complainant. See Smith v. United States Postal Service, EEOC Request No. 05920962 (September 7, 1993). Although Issues 5-7 were properly dismissed due to complainant's failure to diligently pursue her claim that she suffered discrimination between 1996 and 1998 while serving as the Deputy Director of Acquisitions, we remind the agency that on remand it must ensure that the individuals responsible for processing the remanded allegations are not individuals charged by complainant as participating in the discrimination to which she was subjected. ORDER The agency is ordered to take the following actions: Conduct a supplemental investigation into 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, as described above, within thirty (30) calendardays of the date this decision becomes final. The agency shall fully investigate complainant's claim that she was subjected to sex discrimination during her tenure as Deputy Director of JUXOCO. In conjunction with this investigation, the agency shall conduct any further investigation necessary on Issues 1 and 2, to the extent those issues related to the alleged pattern of discrimination. The agency shall issue to complainant a copy of the resulting investigative file addressing all of the claims herein as a consolidated claim, 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 (K0501) 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 (M0701) 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 (T0900) This decision affirms the agency's final decision in part, but it also requires the agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the agency issues its final decision on your complaint. 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 (Z1199) 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 25, 2002 Date 1 During the investigation, complainant added retaliation for prior EEO activity (under Title VII and EPA) as a basis for this allegation. �