01A03018_r
11-14-2001
James V. Ratkus, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
James V. Ratkus v. Department of Transportation
01A03018
November 14, 2001
.
James V. Ratkus,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A03018
Agency No. 2-00-2040
DECISIONComplainant filed a timely appeal with this Commission from an
agency decision dated February 16, 2000, 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.
The agency characterized his complaint as alleging that he was subjected
to discrimination on the basis of age when:
Complainant was excluded from the new Air Traffic Compensation Pay Plan
(ATCPP) for managers, supervisors, and staff (MSS) that was given to
all field personnel in the FG-2152 job series, effective October 1, 1998;
The FAA Administrator issued a memorandum on March 5, 1999, and a
broadcast message on March 8, 1999, excluding complainant from the
new ATCPP;
On March 19, 1999, the Air Traffic controller position review confirmed
that complainant was properly classified in the 2152 series and equal
to the field 2152 series, but excluded complainant from the ATCPP;
On April 13, 1999, the Director of Air Traffic Services and the
President of the National Air Traffic Controllers Association (NATCA)
Union attempted to systematically eliminate career progression employees
not in the NATCA bargaining unit when they issued a joint Memorandum
of Understanding that excluded complainant from the new ATCPP;
On May 25, 1999, the FAA issued the �Movement Rules�, which further
restricted complainant's career and ability to increase his salary; and
Complainant was informed that his informal complaint processing had
been removed from the EEO Counselor of his choice to an EEO Counselor
in the FAA, Office of Civil Rights, who failed to provide complainant
adequate information and counseling services.
The agency decision dismissed the entire complaint for failure to
state a claim, and, alternatively, dismissed claims (1) through (4) for
untimely EEO Counselor contact. Specifically, with regard to claims (1)
through (5), the agency found that the claims raised a general grievance,
not an individual harm suffered by complainant. The agency apparently
reasoned that, as complainant shared his claim that he did not receive
a pay raise with all the regional and headquarters FG-2152 staff, his
claim did not constitute an individualized harm. For claim (6), the
agency determined that complainant was not aggrieved. Concerning the
untimely EEO Counselor contact of claims (1) through (4), the agency
found that complainant's June 2, 1999 EEO Counselor contact was more
than forty-five days beyond the incidents cited by complainant.
With respect to claims (1) through (5), we find that complainant,
in essence, alleged one claim that he has been excluded from the
Air Traffic Compensation Pay Plan because he was hired prior to the
publication of the Movement Rules on May 25, 1999. As such, we find
that the agency improperly dismissed complainant's claim pursuant to 29
C.F.R. � 1614.107(a)(1). In the present case, complainant asserts that he
is personally harmed because he is not receiving the same pay as others in
the same FG-2152 job series. As complainant identified a specific injury
with respect to the terms and conditions of his employment, we find that
he has stated a claim. See Crandall v. Department of Veterans Affairs,
EEOC Request No. 05970508 (September 11, 1997); Coleman v. Department of
Transportation, EEOC Request No. 05A10034 (February 28, 2001). Moreover,
because the incidents identified as claims (1) through (5) form a single
claim and the specified incident in claim (5) occurred within forty-five
days of complainant's EEO Counselor contact, the entire claim is timely.
Regarding claim (6), however, we find that it was properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1). Because complainant failed
to identify a specific harm or loss with respect to a term, condition,
or privilege of his employment, claim (6) fails to state a claim.
Accordingly, the agency's decision dismissing claim (6) is AFFIRMED.
The agency's decision dismissing claims (1) through (5) is REVERSED.
Claims (1) - (5), redefined in this decision as one claim, is REMANDED for
further processing in accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims, as defined by the
Commission herein, in accordance with 29 C.F.R. � 1614.108. 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 (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/action 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
November 14, 2001
__________________
Date