05a50728
04-27-2005
Malachy Coghlan, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Malachy Coghlan v. Department of Transportation
05A50728
April 27, 2005
.
Malachy Coghlan,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Request No. 05A50728
Appeal No. 01A52152
Agency No. 2004-18297-FAA-2
DENIAL
Malachy Coghlan (complainant) timely requested reconsideration of
the decision in Malachy Coghlan v. Department of Transportation, EEOC
Appeal No. 01A52152 (March 11, 2005). 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).
In his request, complainant contends that the agency's Core Compensation
System has a disparate impact on older employees. Complainant is
contending that he has been discriminated against on a continuing
basis and that each pay check he has received constitutes a separate,
actionable claim under the Age Discrimination in Employment Act.
See Bazemore v. Friday, 478 U.S. 385, 396 (1986) (each week's paycheck
that delivers less to a Black than a similarly situated White is a wrong
actionable under Title VII). Complainant also requests that we address
the merits of his complaint. However, the request to reconsider concerns
the agency's dismissal of his complaint due to a procedural defect.
Thus, the merits of the complaint are not before us.
The prior decision found that complainant knew or reasonably should have
suspected discrimination when on or about January 11, 2004 he received
OSI/SCI awards as a lump sum payment with no permanent adjustments to
his salary. Complainant did not contact an EEO Counselor until August
10, 2004. In our prior decision, we were not persuaded by complainant's
continuing violation claim and we are not now persuaded by complainant's
claim that each paycheck he receives is a separate actionable claim.
The discriminatory act at issue was the receipt of a lump sum award in
lieu of a salary increase, and complainant has presented no persuasive
argument as to why we should toll the time limits for contacting an EEO
Counselor.
After reconsidering 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. 01A52152 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 (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
April 27, 2005
__________________
Date