0720120020
04-12-2012
Larry E. Lescanec, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Larry E. Lescanec,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal Nos. 0720120020
0120101979
Hearing No. 551-2007-0087X
Agency No. DOT-2006-20643-FAA-03
DISMISSAL OF APPEALS
Following its March 12, 2010, final order, the Agency filed an appeal of an EEOC Administrative Judge's (AJ) finding that it engaged in age discrimination, in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Agency filed its appeal with the Commission on April 14, 2010. Complainant also appealed the AJ's decision on May 7, 2010. For the following reasons, the Commission DISMISSES the appeals by the Agency and Complainant on the basis that both appeals were untimely filed.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Certified Professional Controller at the Agency's facility in Anchorage, Alaska. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (born January 1957) when it failed to select him a Traffic Management Coordinator position in the Traffic Management Unit (TMU) of the Anchorage Air Route Traffic Control Center (ARTCC).
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, and the AJ held a hearing in June 2008.
On June 20, 2008, the AJ issued a bench decision in which she found that Complainant was subjected to age discrimination. The AJ further determined that Complainant was not only entitled to "[back] pay and wages, but also interest from the date on which [the selectee] encumbered the position in November of 2006." Hearing Transcript (HT), p. 486. Complainant declined placement into the position; therefore, the AJ stated that she would not order the Agency to place Complainant in the Traffic Management Coordinator position. HT, p. 489.
In an order dated September 22, 2008, the AJ "reminded" the parties that a written decision in favor of Complainant would be issued unless the parties entered into a settlement agreement by September 25, 2008. On September 25, 2008, the parties entered into a settlement agreement, and the AJ issued an order of dismissal on September 29, 2008, in which she dismissed Complainant's case. However, in accordance with the Older Workers Benefit Protection Act (OWBPA), the settlement agreement allowed Complainant to revoke the agreement within seven days of its execution, which Complainant exercised on October 2, 2008. See 29 C.F.R. � 1625.22(e)(2).
On January 27, 2010, the AJ issued the following one paragraph order:
Notice is hereby given that the above captioned case was DISMISSED pursuant to the terms of the signed settlement agreement, and that pursuant to the revocation by the Complainant of said agreement, the oral findings entered by the Administrative Judge on June 20, 2008, at the conclusion of the hearing, which set forth the basis for a finding of age discrimination against the Agency, in violation of the Age Discrimination in Employment Act of 1967 (ADEA) for failure to select him for the position of TMU Specialist, under Vacancy Announcement No. AAL-ATO-05-064-78192, are incorporated by reference as the final hearing decision. No damages are awarded as none were proven by the allegations or available under the ADEA. The Parties have been previously provided with a copy of the transcript. Accordingly, the Agency is directed, if it has not already done so, to issue a final order within 40 days and/or take any other final action as provided under 29 CFR 16l4.110.
The Agency filed an appeal with the Commission on April 14, 2010, in which it challenged the AJ's finding that Complainant was subjected to age discrimination. Complainant filed an appeal with the Commission on March 7, 2010, in which he maintained that the AJ erred when she forgot to include back pay in her final January 27, 2010, order.1 Complainant further contends that the AJ prematurely issued an order of dismissal before the revocation period expired for the settlement agreement, and improperly sent her January 27, 2010, order to his former representative.
ANALYSIS AND FINDINGS
The Agency's Appeal
EEOC Regulation 29 C.F.R. � 1614.110 (a) states, in pertinent part, that when an AJ has issued a decision, the agency shall take final action on the complaint by issuing a final order within 40 days of receipt of the hearing file and the AJ's decision. If the final order does not fully implement the AJ's decision, the agency shall simultaneously file an appeal to the Commission. 29 C.F.R. � 1614.110 (a).
In the instant matter, we find that the Agency did not file its appeal with the Commission in a timely manner. The record shows the AJ sent a copy of her January 27, 2010, order to the parties on January 27, 2010.2 The certificate of service attached to the decision stated that it would be presumed that the parties received the order within five days, or February 1, 2010.3 The fortieth day after February 1, 2010, is March 13, 2010. Although the Agency issued its final order on March 12, 2010, there is no evidence that the Agency simultaneously appealed the AJ's decision and order, as required by EEO regulations.
In fact, the Agency's appeal to the Commission is postmarked April 14, 2010, well after the March 12, 2010, final order. Therefore, we find that the Agency failed to appeal within the 40-day time period set forth in the Commission's regulations at 29 C.F.R. � 1614.110(a). The AJ's decision therefore became the final action of the Agency by operation of law. The Agency has not provided any argument that would warrant a waiver of the applicable time limit. Therefore, we DISMISS the Agency's appeal as untimely filed. See 29 C.F.R. � 1614.403(c).
Complainant's Appeal
On appeal, Complainant states that he received the Agency's final order that did not implement the AJ's decision on March 12, 2010. Complainant's "Response to the DOTs Final Order," p. 1. A review of the final order reveals that the Agency properly advised Complainant that he had thirty (30) calendar days after receipt of its final decision to file an appeal with the Commission. See 29 C.F.R. � 1614.402(a). Therefore, in order to be considered timely, Complainant had to file his appeal no later than Monday, April 12, 2010. Complainant did not file his appeal until May 7, 2010. Moreover, Complainant did not make any argument that would warrant a waiver or extension of the applicable time limit. Consequently, Complainant's May 7, 2010, appeal is hereby DISMISSED as untimely.
Because the Agency and Complainant failed to timely file their appeals, they cannot now challenge any aspect of the AJ's decision. McCue v. U.S. Postal Serv., EEOC Appeal No. 01A13411 (Aug. 8, 2002); Wright v. U.S. Postal Serv., EEOC Appeal No. 0720070047 (Feb. 11, 2011), req. for recons. den., EEOC Request No. 0520110365 (Mar. 13, 2012). The Commission will not address the merits of the AJ's decision or make a determination as to the appropriateness of the remedy provided. However, we note that, by incorporating her June 20, 2008 bench decision into her January 27, 2010 order, the AJ ordered the Agency to pay Complainant back pay and benefits with interest. The Commission directs the agency to provide relief consistent with the AJ's decision, as set out in the Order below.
CONCLUSION
The Agency's and Complainant's appeals are DISMISSED. The Agency is directed to comply with the Order below.
ORDER
The Agency shall undertake the following actions:
Determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. Back pay shall be calculated from the date the selectee was placed into the Traffic Management Coordinator position until the January 27, 2010, date of the AJ's final order. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
The Agency shall submit a report of compliance, as provided in the below-entitled paragraph, "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 within ninety (90) calendar days from the date that you receive this decision. 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 (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
April 12, 2012
Date
1 Although Complainant's statement is not formally characterized as an appeal, Complainant clearly challenges the AJ's determinations and actions in his statement to the Commission. Therefore, Complainant is essentially appealing the AJ's decision and order.
2 We note that Complainant contends that he did not "see" the AJ's January 27, 2010, until April 12, 2010. However, the certificate of service reveals that the AJ's January 27, 2010, order was sent to Complainant's address of record on January 27, 2010. In any event, Complainant acknowledges that he received the Agency's final order on March 12, 2010.
3 The Commission notes that, where, as here, certified mail/return receipt is not used by an EEOC Administrative Judge, an agency is generally deemed to have received the decision five days after it was sent. EEO MD-110, 9-2 n.2. ("If service of the Administrative Judge's decision was by mail without the use of certified mail/return receipt, the agency may add five days to the date that the final action is due. This rule, adding five days to the date of service, shall apply in all instances where the party being served has the right to take an action within a period of time following such service, except where the serving party uses certified mail/return receipt and can establish the date of actual receipt.").
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0720120020
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0720120020
0120101979