Elmer C.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Jun 7, 2019

2019003626 (E.E.O.C. Jun. 7, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Elmer C.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Request No. 2019003626

Appeal No. 0120150721

Hearing No. 410-2012-00391X

Agency No. 201124166FAA03

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 2019003626 (February 15, 2018).
EEOC Regulations provide that the Commission may, in its discretion, grant a request to
reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where
the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b).

By regulation, requests must be filed within thirty (30) calendar days after the party receives the
previous decision. 29 C.F.R. § 1614.405(b). A document is timely if it is received or
postmarked before the expiration of the applicable filing period or, in the absence of a legible
postmark, if it is received by mail within five days of the expiration of the applicable filing
period. 29 C.F.R. § 1614.604(b).

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.
2019003626

2
Here, the Commission’s previous decision included a Certificate of Mailing indicating that, for
purposes of timeliness, we will presume that the decision was received within five (5) calendar
days of the date on which it was mailed, which was February 15, 2018. As such, the Agency is
presumed to have received the previous decision no later than February 20, 2018. Thirty days
from that date is March 22, 2018. However, the Agency submitted its request on April 5, 2018,
which was beyond the 30-day limit set by regulation.

In response to Complainant’s arguments that the request was untimely made, the Agency, in its
brief, concedes that the decision was received by its Office of Civil Rights on February 22, 2018,
and forwarded by email to its General Counsel’s office on February 23, 2018. However, the
brief indicates the date of receipt was misread as February 28, 2018, and the five-day
presumption was erroneously calculated from that date. After careful consideration of the
Agency’s representations, we do not find the Agency’s reasons for its delay sufficient to waive it
untimely filing.

For the foregoing reasons, the Agency's request for reconsideration is denied. The decision in
EEOC Appeal No. 0120150721 remains the Commission's decision. There is no further right of
administrative appeal on the decision of the Commission on this request. The Agency is directed
to comply with our original Order as set forth below.

ORDER

The Agency is Ordered as follows:

1. The Agency is directed to submit a copy of the complaint file to the EEOC Atlanta
District Office Hearings Unit (including the transcript of the second day of the
hearing that has already taken place) within fifteen (15) calendar days of the date this
decision is issued. The Agency shall provide written notification to the EEOC
Compliance Officer at the address set forth below that the complaint file has been
transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall permit
time for discovery and hold a supplemental hearing with respect to the “Race Memo.”
Within 120 calendar days of the date this decision is issued, the AJ shall issue a new
decision with respect to all four claims (including both alleged bases) raised in
Agency No. 2011-24166-FAA-03 in accordance with 29 C.F.R. § 1614.109.
Thereafter, the Agency shall issue a new final action in accordance with 29 C.F.R. §
1614.110.

2. The Agency has fifteen (15) calendar days to provide clear evidence to the
Compliance Officer that both the Agency and the Atlanta District Office, Hearings
Unit properly processed the following complaints: (1) Agency Mo. 2012-243-
FAA03/EEOC Hearing No. 410-2013-00017X; (2) Agency No. 2012-24586-FAA-
03/EEOC Hearing No. 410-2013-00258X; and (3) Agency Mo. 2013-25011-FAA-
03/EEOC Hearing No. 410-2014-00062X. To the extent that clear evidence is not
presented within fifteen (15) calendar days from the date this decision is issued, the
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Agency shall resume proper processing of Complainant’s complaints by submitting a
copy of each complaint file to the Atlanta District Office Hearings Unit to be
processed in accordance with 29 C.F.R. § 1614.109, and thereafter the Agency shall
issue a final decision in accordance with 29 C.F.R. § 1614.110.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.

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
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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

June 7, 2019
Date