Gerald R. Chambers, Complainant,v.Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity CommissionDec 16, 2011
0520110547 (E.E.O.C. Dec. 16, 2011)

0520110547

12-16-2011

Gerald R. Chambers, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.




Gerald R. Chambers,

Complainant,

v.

Ray H. LaHood,

Secretary,

Department of Transportation

(Federal Aviation Administration),

Agency.

Request No. 0520110547

Appeal No. 0720100009

Hearing No. 160-2003-08562X

Agency No. DOT-1-98-1025

DENIAL

Complainant timely requested reconsideration of the decision in Gerald

R. Chambers v. Department of Transportation, EEOC Appeal No. 0720100009

(June 10, 2011). 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(b).

BACKGROUND

The previous decision vacated an EEOC Administrative Judge’s (AJ)

finding of discrimination based on age in relation to Complainant’s

claim that he had been subjected to disparate treatment when he was not

selected for the position of Air Traffic Control Specialist, and disparate

impact through the Agency’s policy of requiring former Professional

Air Traffic Controllers Organization (PATCO) controllers re-entering

employment with the Agency to apply only under Recruitment Notice 93-01.

We found that the AJ had based her finding of discrimination on a

disparate impact theory of discrimination, even though the parties

had not been given the opportunity to produce statistical evidence or

other evidence and arguments related to a disparate impact claim during

the hearing. We remanded the complaint for a further hearing at which

the parties could more fully litigate the disparate impact claim.

Additionally, in response to Complainant’s objections, the previous

decision specifically found that the Agency’s brief in support of its

appeal was timely filed on December 22, 2009.

ARGUMENTS ON RECONSIDERATION

In his request for reconsideration, Complainant raises two arguments.

First he argues that the Agency’s brief in support of its appeal was

due on December 21, 2009, pursuant to a letter of extension issued by

this Office to the Agency granting it additional time to file its brief.

He also argues that the Agency’s brief in opposition to his cross-appeal

(filed on November 25, 2009, docketed as EEOC Appeal No. 0120100638, and

closed on August 6, 2010) was also untimely filed on December 30, 2009.

He presents evidence that at least one Agency counsel’s office had

received it on November 27, 2009. Complainant posits that the untimely

filing of the Agency’s briefs should have resulted in the Commission

not considering the Agency’s arguments.

Complainant secondarily argues that the complaint should not be returned

for a new hearing or additional evidence on the disparate impact claim,

and that “[a]ll information to make a just decision is on the record.”

In its response to Complainant’s request for reconsideration, the Agency

argues that its December 22, 2009, brief was timely filed. It produced

evidence that it was unable to submit a brief on December 21, 2009, due

to the closing of federal government offices in Washington, D.C. on that

date in response to a severe snowstorm. U.S. Postal Service mail service

was also suspended. The Agency argues that it submitted its brief on

the very next day, when federal offices reopened. The Agency argues that

its opposition brief to Complainant’s cross-appeal was timely filed on

December 30, 2009, as it had received his brief on November 30, 2009,

and that Complainant’s own certificate of service indicated that it

had been mailed on November 27, 2009 (a Friday). It indicated that it

had relied on Complainant’s certificate of service to calculate the

date on which he mailed his appeal. The Agency argued that the dispute

over the December 30, 2009, brief in opposition was moot due to the

“dismissal” of Complainant’s appeal.

DETERMINATION

We find that the Agency’s December 22, 2009, brief in support of

its appeal was timely filed, and properly considered. Pursuant to

29. C.F.R. § 1614.604(d), when computing time frames, if the last day

of the period falls on a Saturday, Sunday or Federal holiday, “the

period shall be extended to include the next business day.” We find

that a situation in which federal offices are closed and mail service

suspended is akin to a Federal holiday, and so find that the one-day

delay in service was justified.

We additionally find that the Agency’s brief in response to

Complainant’s cross-appeal was timely filed, as Agency counsel

relied on Complainant’s certificate of service, which stated that

it had been mailed on November 27, 2009. Although Complainant later

provided proof of mailing his appeal and brief on November 25, 2009, the

Agency’s calculation of thirty days from its receipt of the document

on November 30, 2009, would make a December 30, 2009 filing timely.

We therefore find that the Agency’s opposition brief was timely, and

properly considered in the previous decision. We also find that the

Agency’s position that the timeliness argument regarding its brief in

opposition is in any event moot due to the dismissal of Complainant’s

appeal is incorrect. The decision in EEOC Appeal No. 0120100638 did

not dismiss Complainant’s cross-appeal, but merely closed the record

and consolidated Complainant’s cross-appeal and the Agency’s appeal

into one decision for the purposes of judicial economy.

Finally, we find that Complainant has not shown that the previous decision

involved a clearly erroneous interpretation of fact or law, or that it

would have a substantial impact on the policies, practices or operations

of the Agency. Although he argued that the numerous procedural rulings

have delayed the resolution of his case, we find that he has not shown

that the previous decision was incorrect.

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(b), and it is the decision of the Commission to DENY

the request. The decision in EEOC Appeal No. 0720100009 remains the

Commission's decision. There is no further right of administrative

appeal on the decision of the Commission on this request.

ORDER

The Agency shall submit to the appropriate EEOC Hearings Unit the

request for a hearing on the disparate impact claim as discussed in

EEOC Appeal No. 0720100009 within fifteen (15) calendar days of the

date this decision becomes final. The Agency is directed to submit a

copy of the complaint file to the EEOC Hearings Unit within fifteen (15)

calendar days of the date this decision becomes final. The Agency shall

provide written notification to the Compliance Officer at the address set

forth below that the complaint file has been transmitted to the Hearings

Unit. Thereafter, the Administrative Judge shall issue a decision on

the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency

shall issue a final action in accordance with 29 C.F.R. § 1614.110.

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.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission’s decision. 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. 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.

RIGHT TO REQUEST COUNSEL (Z0610)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

December 16, 2011

Date

2

0520110547

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0520110547