05a10034
02-28-2001
Alan A. Coleman, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Federal Aviation Administration, Agency.
Alan A. Coleman v. Department of Transportation, Federal Aviation
Administration
05A10034
02-28-01
.
Alan A. Coleman,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Federal Aviation Administration,
Agency.
Request No. 05A10034
Appeal No. 01A03050
Agency No. 2-00-2021
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in
Alan A. Coleman v. Department of Transportation, Federal Aviation
Administration, EEOC Appeal No. 01A03050 (July 19, 2000).<1> EEOC
Regulations provide that the Commission may, in its discretion,
reconsider any previous Commission decision 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). For the reasons set forth
below, the Commission denies the agency's request.
Complainant filed a complaint in which he claimed that the agency violated
Title VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act (ADEA), and the Equal Pay Act (EPA) by compensating him
at a lower rate than a younger female air traffic controller. The agency
dismissed his complaint for failure to state a claim and complainant
appealed. The previous decision reversed the agency's dismissal of
the complaint and ordered the agency to investigate. In its request
for reconsideration, the agency maintains that the complaint states a
generalized grievance, and that complainant's initial contact with an
EEO counselor was untimely.
In his formal complaint dated August 30, 1999, complainant identified
gender and age as the bases of discrimination on which he based his claim.
He framed his discrimination claim as follows:
As an FG-14, step 6, I had an annual base pay of $79,999, plus the five
percent operational differential ($3,982), and I was also receiving
($3,696) that was estimated to be the pay increase based on facility
reclassification, GS-14/6 to ATC-12/6 (total pay $87,677). I received
my first pay under the new system on June 15, and was shocked to see my
new base pay of $78,664, which now includes the operational differential
(figured at 4.1%) and the supposed increase. Instead of getting an
increase to $88,403 (GS-14 step 6 transitioning to ATC-12 step or band
6), I am now at a level that is $9,739 lower. . . . Now, I work next to
a younger [female] controller (not a rehire) with the same job, requiring
equal skill, effort, responsibilities, and performed under similar working
conditions. Although we both have the same time (seniority) as Full
Performance Level (CPC) Controllers at this facility, and everything else
is equal, this controller next to me is making $9,739 more per year. . .
In another part of the complaint, complaint stated that the agency and
the union negotiated a pay agreement that violated his right to receive
the pay that he was promised.
In its request for reconsideration, the agency again argues that
complainant's allegation is a generalized grievance, and therefore fails
to state a claim. Complainant cannot pursue a generalized grievance that
members of one protected group are afforded benefits not offered to other
protected groups, unless he further alleges some specific injury to him
as a result of the alleged discriminatory practice. Warth v. Seldin,
422 U.S. 490, 499 (1975). Put another way, the Commission has held
that, to the extent that complainant identifies a cognizable claim
of personal harm beyond the generalized grievance, he states a claim.
Crandall v. Department of Veterans Affairs, EEOC Request No. 05970508
(September 11, 1997); Passey v. United States Postal Service, EEOC Appeal
No. 01984974 (February 28, 2000); Gallion v. Department of Transportation,
EEOC Appeal no. 01A00970 (May 22, 2000), request for reconsideration
denied EEOC Request No. 05A00881 (August 15, 2000). In Crandall,
the Commission held that, although the claim that one group of nurses
received more favorable treatment than another group was a generalized
grievance, complainant's claim that her pay should have been adjusted
along with the nurses in the other units was not. Similarly, in Passey,
another complaint concerning a pay package, complainant's contention
that she and other members of her protected group did not receive a $500
award because of their sex stated a claim. The Commission noted that
the aggrieved employee's allegation of a specific harm with regard to
the award money took her claim out of the realm of generalized grievance.
Finally, in Gallion, a case involving the same pay system as the instant
matter, the aggrieved employee's contention that he received a smaller pay
increase than younger, similarly situated employees was not a generalized
grievance.
Applying these principles to the case before us, a claim of a pay cut
of almost $10,000 is most definitely a claim of specific harm that was
not present in Bovinette, Ellis, or any of the other cases cited by the
agency in its request for reconsideration. In the absence of such an
allegation of specific harm, complainant's claim that the agency's pay
system violated his rights would have been a generalized grievance.
However, as in Crandall, Passey, and Gallion, complainant identified
a specific injury with respect to the terms and conditions of his
employment beyond the vague and general assertion that the agency's
pay plan violated his rights. This is enough to state a claim.
Valle v. United States Postal Service, EEOC Request No. 059960585
(September 5, 1997). Therefore, contrary to the agency, we find that the
instant case does not involve the type of challenge to its compensation
system that the Commission found to be a generalized grievance.
We now turn, again, to the timeliness argument. The agency maintains that
the allegedly discriminatory act occurred in April 1999, and that he did
not contact an EEO counselor until July 22, 1999, after the expiration of
the 45-day period. This is contradicted by the EEO counselor's report,
which clearly identifies the date of the alleged discriminatory event
as June 23, 1999, and the 45th day after the event as August 7, 1999.
Complainant's initial counselor contact on July 22, 1999, clearly occurred
before the expiration of the 45-day period on August 7th. The agency
argues that complainant received constructive notice on April 22, 1999,
that PATCO rehires below the full performance level would not receive
the same pay increase as controllers at the full performance level.
Even if complainant did see this notice, it would not have applied to
him, because he was certified at the full performance level on March
28, 1999, and would not have had a reason to believe that the notice
would have affected him. It was not until June 1999 that he learned
of the alleged pay discrepancy between himself and a younger female
controller who, like him, was already at the full performance level.
The agency's argument that complainant failed to timely contact an EEO
counselor finds no support in the record.
After a review of the agency's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A03050 remains the Commission's final decision.
The agency is directed to carry out the order set forth in our previous
decision. There is no further right of administrative appeal on the
decision of the Commission on this request for reconsideration.
ORDER (E1199)
Unless it has already done so, the agency shall process the remanded claim
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 on which it receives this decision.
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 on which it receives this
decision, 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 an
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 (K0900)
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)(Supp. V 1993). 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
(R0900)
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 (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
__02-28-01________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.