Bart L.,1 Complainant,v.Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity CommissionJul 27, 2016
0120161807 (E.E.O.C. Jul. 27, 2016)

0120161807

07-27-2016

Bart L.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Bart L.,1

Complainant,

v.

Anthony Foxx,

Secretary,

Department of Transportation

(Federal Aviation Administration),

Agency.

Appeal No. 0120161807

MSPB Hearing No. SF-0752-16-0398-I-1

Agency No. 2014-25802-FAA-06

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) concerning the Agency's decision dated March 3, 2016, dismissing his complaint of unlawful employment discrimination alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control Trainee at the Agency's Air Traffic Control Tower (ATCT) in Chino, California.

On December 19, 2014, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

1. in February/March 2011, his former first line supervisor travelled from Long Beach to issue him a written admonishment for something that had occurred the year before; 2

2. in 2013 and 2014, he was subjected to less favorable treatment in the completion and evaluation of his training;3 and

3. effective May 21, 2014, he was terminated from his position.

On January 9, 2015, the Agency, defining the complaint as consisting solely of the incident concerning the written admonishment, dismissed the complaint for failure to state a claim. Complainant appealed (EEOC Appeal No. 0120151253).

Prior to a decision being issued on the appeal, the Agency informed the Commission that it was rescinding its dismissal decision because it had not addressed all of the claims raised in the EEO complaint. Based on the Agency's rescission of its January 9, 2015 dismissal decision, the Commission administratively closed EEOC Appeal No. 0120151253 on July 1, 2015.

The Agency accepted the complaint as defined above and conducted an investigation. At the conclusion of the investigation, the Agency issued a final decision without offering an opportunity for a hearing before an EEOC administrative judge because the complaint was considered a "mixed" case complaint due to the termination issue. See 29 C.F.R. � 1614.302.

The Agency's March 3, 2016 final decision did not address the merits of Complainant's claims despite the investigation. Rather, it dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Complainant filed an appeal from the decision on April 1, 2016, with the Merit Systems Protection Board (MSPB or Board).

The MSPB Administrative Judge (MSPB AJ) issued a decision on May 5, 2016, dismissing the appeal on timeliness grounds. The MSPB AJ noted that the Board's regulations provided it jurisdiction over an appeal filed within 30 days of an Agency final decision on a "timely formal [mixed case] complaint of discrimination." The MSPB AJ deferred to the Agency's decision that the complaint in this matter had not been timely filed. The MSPB AJ further noted that the correctness of the Agency's determination with regard to the timeliness of the complaint had to be appealed to the EEOC and not the MSPB.

Upon receipt of the MSPB decision, Complainant filed the instant appeal from the Agency's March 3, 2016 dismissal decision to this Commission.

ANALYSIS AND FINDINGS

Timeliness of Appeal

As an initial matter, we must decide whether this appeal should be dismissed as untimely because it was not filed with EEOC within 30 days of the Agency's March 3, 2016 dismissal decision. Instead, Complainant filed his appeal with the MSPB within the 30-day period, and did not appeal to this Commission until after the MSPB decision was issued.

We note that the Agency's dismissal decision contained appeal rights directing Complainant to appeal to EEOC. However, we find that Complainant was understandably confused about where to file his appeal as final agency decisions on mixed case complaints are usually appealed to the MSPB. Upon receipt of the appeal, the MSPB dismissed the appeal, noting that adjudications concerning the timeliness of EEO complaints should be decided by the EEOC and not the MSPB. Complainant filed the instant appeal immediately upon receiving the MSPB decision.

Under these unique circumstances, we will accept Complainant's appeal and excuse the delay in filing with EEOC.

Correctness of Agency's March 3, 2016 Dismissal Decision

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.

In its final decision, the Agency determined that Complainant first initiated contact with an EEO counselor on the matters raised in his complaint on July 9, 2014, two days beyond the 45-day limitation period from the effective date of Complainant's termination, and well beyond the earlier incidents concerning the written admonishment and training issues.

However, on appeal, Complainant contends that on June 23, 2014, 33 days after his termination was effective, he called the telephone number on the Agency's website designated for initiating the EEO complaint process. He contends that he left a message detailing his complaint. He further contends that several days later, on June 24 and 27, 2014, representatives from the Agency's EEO program responded to his message and discussed his claims with him, and later provided him with counseling. Complainant provides his telephone records to corroborate these claims. Complainant had also indicated this earlier contact with the Agency on his formal complaint form.

We are persuaded that it is more likely than not that Complainant initiated EEO contact with the Agency in June 2014, within the 45-day limitation period from the effective date of his termination. Therefore, we find that the Agency erred in dismissing his termination claim on timeliness grounds. This claim will be remanded to the Agency for further processing. Complainant's other two claims - concerning the 2011 written admonishment and the suspension of his training in mid-2013 - are untimely raised. However, to the extent that Complainant's concerns about training are related to his termination, his contentions about the training should be considered as background evidence to his termination claim.

CONCLUSION

The Agency's March 3, 2016 dismissal of Complainant's termination claim is REVERSED and the matter is REMANDED to the Agency for further processing pursuant to the following Order.

ORDER

Within sixty (60) days of the date this decision becomes final, the Agency shall issue a final decision on the merits of Complainant's termination claim based on the evidence gathered during the investigation and considering his allegations of less favorable treatment regarding training as it relates to his termination.

When it issues the final decision, the Agency shall provide Complainant with appropriate appeal rights to the Merit Systems Protection Board (MSPB) if it determines that the termination claim is a mixed case complaint as defined in 29 C.F.R. � 1614.302. If the Agency determines that the claim is not a mixed case complaint, it shall provide appeal rights to EEOC, rather than the MSPB.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

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 77960, Washington, DC 20013. 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 (M0416)

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 tends 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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (R0610)

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 (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 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

July 27, 2016

__________________

Date

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.

2 The Agency's July 14, 2015 letter of acceptance for investigation indicates this occurred in 2014. However, the report of investigation indicates that the letter of reprimand was actually issued in 2011.

3 According to the investigative report, Complainant contended that, starting in mid-2013, his training as an air traffic controller at the Chino ATCT was suspended. After that, he alleged he was confined to a small office with no instruction or direction, and required to answer telephones.

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