James D. Lisenbe, Complainant,v.Mary E. Peters, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMay 25, 2007
0120070436 (E.E.O.C. May. 25, 2007)

0120070436

05-25-2007

James D. Lisenbe, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.


James D. Lisenbe,

Complainant,

v.

Mary E. Peters,

Secretary,

Department of Transportation,

Agency.

Appeal No. 0120070436

Agency No. 2006-20154-FAA-04

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated September 18, 2006, dismissing his complaint of unlawful

employment discrimination in violation of the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure

to state a claim.

Effective June 29, 1973, complainant began employment as an Air Traffic

Control Specialist (ATCS) with a Texas facility of the agency. However,

during the period at issue herein, complainant no longer worked at

the agency1 and was employed with a private construction company in

Albuquerque, New Mexico. In March 2005, the agency sought to fill ATCS

positions with people who would not have to attend 15-week training at

its academy, so it sought to hire members of a related consortium and

former employees who were reinstatement eligible. Complainant sought

reinstatement. On November 28, 2005, the agency sent complainant a Notice

of Results for all three options for an ATCS position (terminal-radar,

terminal-non-radar, and en route) that indicated "ineligible - did not

meet exemptions to mandatory separation at age 56."

On December 14, 2005, complainant initiated contact with an EEO Counselor

at an agency facility, and, subsequently, filed a formal EEO complaint,

alleging that the agency discriminated against him on the basis of age

(59) when it deemed him ineligible for rehire as an ATCS. Complainant

noted that, as recent as August 23, 2004, the agency deemed him "eligible"

for the "en route" option of an ATCS position. Finally, complainant

added that, in 1993, then-President Clinton lifted the agency's ban on

hiring former Controllers/ATCS.

On March 20, 2006, the agency issued a final decision dismissing

complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for

untimely EEO contact. Complainant filed an appeal with the Commission,

which was docketed as EEOC Appeal No. 01A62732. In a decision dated

August 31, 2006, the EEOC issued Lisenbe v. Dep't of Transportation,

EEOC Appeal No. 01A62732, in which it reversed the agency's dismissal

and remanded the matter for further processing.

On September 18, 2006, the agency issued a final decision dismissing the

remanded complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to

state a claim. Specifically, the agency explained that 5 U.S.C. � 8335

"requires that [a]n [ATCS] be 'separated from service on the last day

of the month in which he becomes 56 years of age' " and that complainant

did not qualify for an exemption to � 8335. The agency noted that there

are three exemptions to the mandatory retirement age, but the one that

applies to its former employees is when an ATCS was first appointed by

the agency before May 16, 1972, and that is not the case for complainant.

Summarily, the agency stated that complainant is challenging the validity

of a mandatory retirement age requirement which was authorized by Congress

as a statutory exception to the ADEA and that such is not within the

purview of EEOC regulations. Complainant filed the instant appeal.

We find that the agency properly dismissed complainant's complaint for

failure to state a claim upon which relief can be granted. The Commission

has consistently held that complainants challenging statutorily created

exceptions to the ADEA fail to state a claim. See Campbell v. Dep't of

Justice, EEOC Request No. 05960550 (April 17, 1997); Divita v. Dep't

of Justice, EEOC Appeal No. 01996072 (April 18, 2001); Schwarzberg

v. Small Business Administration, EEOC Appeal No. 01A05167 (January 29,

2002). Accordingly, we AFFIRM the agency's final decision dismissing

complainant's complaint.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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 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), 9-18 (November 9, 1999). All requests

and arguments must 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 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 (S0900)

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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

May 25, 2007

__________________

Date

1 We note that there was a mass termination of ATCS personnel in 1981.

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0120070436

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120070436