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