Howard G.v.Dep’t of Transp.

Equal Employment Opportunity Commission

Sep 30, 2019

EEOC Appeal No. 2019004213 (E.E.O.C. Sep. 30, 2019)

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

Howard G.,1
Complainant,

v.

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

Appeal No. 2019004213

Agency No. 2018-27908-FAA-05

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s final decision dated May 9, 2018, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant was applying for student pilot certification through the
Agency’s Aerospace Medical Certification Division in Oklahoma City, Oklahoma.

On July 12, 2018, Complainant filed a formal complaint alleging that the Agency subjected him
to discrimination on the bases of disability (right foot-drop) and age (65) when on or about May
1, 2018, Complainant received a request for additional medical information in support of his
application for student pilot certification.

The Agency dismissed Complainant’s complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for

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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failure to state a claim. Specifically, the Agency reasoned complainant lacked standing to make
an ADEA or Rehabilitation Act claim because he was not an employee or applicant for
employment with the Agency under EEOC regulations.

The instant appeal followed.

ANALYSIS AND FINDINGS

The Agency properly dismissed Complainant’s complaint for failure to state a claim in accordance
with 29 C.F.R. § 1614.107(a)(1). The record revealed Complainant disputed the necessity for the
Agency requesting further information about past medical conditions (i.e. COPD and addiction).
According to Complainant, the Agency’s delay of his pilot certification was unlawful of age
discrimination. However, EEOC’s jurisdiction is limited to employment discrimination.
Moreover, the federal administrative EEO complaint process provides an Agency shall accept
complaints of unlawful employment discrimination filed by employees or applicants for
employment. EEOC Regulation 29 C.F.R. §1614. Here, this complaint failed to state a claim
because Complainant failed to show a harm or loss with respect to federal employment for which
there is a remedy under the EEOC regulations. Diaz v. Dep’t of the Air Force, EEOC Request No.
05931049 (Apr. 21, 1994).

CONCLUSION

Therefore, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED
because he is neither an applicant for Agency employment nor an Agency employee.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if Complainant or the
Agency submits a written request containing arguments or evidence which tend 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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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.
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Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610)
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. If you file a request to reconsider
and also file a civil action, 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.

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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

September 30, 2019
Date