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

Equal Employment Opportunity Commission

Feb 9, 2017

0520170027 (E.E.O.C. Feb. 9, 2017)

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

Colby P.,1
Complainant,

v.

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

Request No. 0520170027

Appeal No. 0120162055

Agency No. 2016-26655-FAA-03

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested reconsideration of the decision in Colby P. v. Dep’t of Transp.,
EEOC Appeal No. 0120162055 (Aug. 25, 2017). EEOC Regulations provide that the
Commission may, in its discretion, grant a request to 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(c).

Believing that he was subjected to unlawful discrimination, Complainant contacted an EEO
Counselor on December 24, 2015. Informal efforts to resolve the matter were unsuccessful.
On March 11, 2016, the EEO Counselor provided Complainant a Notice of Right to File a
Discrimination Complaint, informing him that he was entitled to file a formal complaint of
discrimination within 15 calendar days of receipt of the Notice. Complainant acknowledged
receipt of the Notice by facsimile on March 28, 2016. That same day, the Agency’s
Departmental Office of Civil Rights indicated that it had received Complainant’s
correspondence and that it would review it to determine whether it met the regulatory
requirements for a formal complaint. Additional documents in the record show that the

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.
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Agency acknowledged that Complainant filed some form of correspondence through facsimile
on March 28, 2016, and that that date was considered the formal complaint filing date.

Despite these notices indicating a timely-filed complaint, on May 2, 2016, the Agency
contended that Complainant failed to timely file a formal complaint and dismissed the
complaint pursuant to 29 C.F.R. § 1614.107(a)(2). Complainant filed a timely appeal with the
Commission. In that appeal, Complainant submitted a copy of the formal complaint that he
claimed he timely filed with the Agency. Therein, Complainant alleged that the Agency
discriminated against him in reprisal for prior protected EEO activity when he was denied the
option of telework during inspection weeks; and he was harassed when others were told to not
leave him alone with a new inspector and his credentials and abilities were questioned.

In Colby P. v. Dep’t of Transp., EEOC Appeal No. 0120162055 (Aug. 25, 2016), the
Commission reversed the Agency’s dismissal. The Commission noted that the record
contained a March 28, 2016 email from the Agency’s EEO Office to its sub-agency that stated
in pertinent part:

This is to notify your office that [Complainant] has filed a formal complaint of
discrimination against the Department of Transportation, Federal Aviation
Administration, in accordance with 29 C.F.R. Part 1614, the filing date of the
complaint is March 28, 2016, which is the faxed date of the complaint.

The Commission concluded that Complainant appeared to have attempted to file a complaint,
but may have not included the Agency’s preferred complaint form. The Commission
acknowledged that the record was unclear as to what Complainant may have filed on March
28, 2016, and if he had filed additional documents at a later date. The Commission noted that
the Agency had the burden to provide evidence to support its dismissal decision. Nonetheless,
the Commission determined that Complainant sufficiently evidenced a desire to proceed with a
formal complaint in a timely manner, and that his complaint should not be dismissed because
he may have been confused about which forms needed to be submitted. Accordingly, based on
the specific circumstances present, the Commission exercised its discretion and excused any
delay in Complainant’s formal complaint filing. The Commission remanded the complaint for
further processing.

In its request for reconsideration, the Agency again argues that Complainant did not file a
timely formal complaint. The Agency contends that it properly dismissed Complainant’s
complaint because he failed to submit a sufficiently precise, signed statement in the time frame
allotted as required by 29 C.F.R. § 1614.106. Accordingly, the Agency requests that the
Commission grant its request for reconsideration and affirm its FAD dismissing the complaint.

In the previous decision, the Commission found that Complainant had demonstrated sufficient
desire to continue with the formal complaint process by his March 28, 2016 faxed
correspondence. The Commission acknowledged that the record was unclear as to exactly
what Complainant submitted; however, the Commission noted that several Agency officials
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treated the correspondence at the time as a properly filed complaint. The Commission found
that this, coupled with Complainant’s subsequent submission of the preferred Agency formal
complaint form, was sufficient justification excusing any delay. A reconsideration request is
an opportunity to demonstrate that the appellate decision involved a clearly erroneous
interpretation of material fact or law, or will have a substantial impact on the policies,
practices, or operations of the Agency. The Commission is unpersuaded by the Agency’s
arguments that the Commission clearly erred in finding that Complainant demonstrated
sufficient desire to continue with the formal complaint process. Furthermore, the Agency has
not shown that the Commission clearly erred in exercising its discretion excusing any delay in
the filing of Complainant’s formal complaint based on the specific circumstances present.

After reviewing 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(c), and it is the decision of the
Commission to DENY the request. The decision in Colby P. v. Dep’t of Transp., EEOC
Appeal No. 0120162055 remains the Commission's decision. There is no further right of
administrative appeal on the decision of the Commission on this request. The Agency shall
comply with the Order as set forth below.

ORDER

The Agency is ordered to process the remanded claims (as defined in the complaint form
submitted on appeal)2 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 was issued. 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 was issued, 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 (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

2 As the Commission noted in its appellate decision, Complainant alleged disability as a basis
of discrimination in the EEO Counselor’s Report, and he may amend the complaint to add the
additional basis of disability.
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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.

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
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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

February 9, 2017
Date