01983671
06-07-1999
Gerald R. Chambers, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency
Gerald R. Chambers v. Department of Transportation
01983671
June 7, 1999
Gerald R. Chambers, )
Appellant, )
) Appeal No. 01983671
v. ) Agency No. DOT1981025
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
his complaint of unlawful employment discrimination in violation
of the Age Discrimination in Employment Act of 1967, as amended, 29
U.S.C. Section 621 et seq. The appeal is accepted by the Commission in
accordance with the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
Appellant filed a formal complaint alleging discrimination based on age
(DOB 01/01/47) when, in the Fall of 1996, he was not accepted for a
position as an Air Traffic Control Specialist (ATCS) at the agency's
Washington Air Route Traffic Control Center (Washington Center).
Appellant was a GS-14 ATCS and Professional Air Traffic Controller
Organization (PATCO) employee with the Federal Aviation Administration
(FAA or agency) fired in 1981 as a result of a strike. On December 9,
1981, President Reagan issued a directive permitting the fired controllers
to apply for Federal employment in all agencies except the FAA. On August
12, 1993, President Clinton lifted the ban on the FAA rehiring PATCO
fired controllers. Appellant, who had been working as an air traffic
controller for a defense agency, applied for an ATCS GS-2152-12/13/14
position with the agency at its Washington Center under Announcement
No. AEA-AAT-96-074-11006 (the Announcement) issued between August 14,
1996, and September 5, 1996.
Appellant was not informed of whether he was selected, and eventually
accepted a GS-9 ATCS position at the agency's Washington Center through
its Recruitment Notice 93-01 (the Notice) advertised as a PATCO rehire
program. Appellant noticed during the ensuing months after he arrived
at the Washington Center that the successful candidates hired under the
Announcement were considerably younger than he and lacked his years
of experience. Appellant concluded the hiring of younger, non-PATCO
controllers at the higher grades offered in the Announcement was based
on age discrimination.
The agency dismissed the complaint in the final agency decision, dated
February 6, 1998, for failure to state a claim and also determined
that appellant failed to present a prima facie case under guidelines
established in McDonnell Douglas Corp. v. Green, 422 U.S. 792 (1973),
claiming the Notice was its sole mechanism established to re-hire such
individuals. Therefore, the agency found that appellant was not deemed
a qualified applicant under the Announcement.
ANALYSIS AND FINDINGS
As a preliminary matter, the Commission notes that in its comments
to appellant's appeal, the agency raised the argument that appellant's
October 27, 1997, EEO counselor contact was untimely. Appellant argues on
appeal that he timely contacted an EEO Counselor as soon as he learned the
younger colleagues at Washington Center were hired under the Announcement,
and suspected discrimination.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with a counselor within 45 days of the
date of the matter alleged to be discriminatory or, in the case of
personnel action, within 45 days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard, as opposed
to a "supportive facts" standard, to determine when the limitation period
is triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988).
The Commission finds appellant timely contacted an EEO Counselor once
he learned the younger colleagues were hired under the Announcement and
suspected age discrimination.
The agency dismissed appellant's complaint on procedural grounds and then
attempted to reach the merits of the case without properly investigating
appellant's claims or providing appellant with the opportunity for a
hearing before an EEOC administrative judge.
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission finds that appellant demonstrates an injury and therefore
states a claim when he alleges he was denied employment at the GS-12/13/14
level under the Announcement because of his age.
The Commission finds that in addition to appellant's complaint of
disparate treatment based on age, appellant also raises a claim of
disparate impact. Appellant challenges the stated practice of rehiring
former PATCO controllers, all of whom can now be presumed to be over
the age of 40, solely under the Notice which the agency states sets
restrictions on grades and promotional opportunities not otherwise found
in ATCS vacancy announcements open to non-PATCO controllers.
On remand, the agency shall investigate appellant's claims of both
disparate treatment and disparate impact.
CONCLUSION
Accordingly, the decision of the agency is REVERSED and REMANDED for
further processing in accordance with this decision and the proper
regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
June 7, 1999
______________ ___________________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations