0120080756
01-04-2011
Marcus J. Brown, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Marcus J. Brown,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120080756
Hearing Nos. 210-2002-06091X; 210-2002-06117X
Agency Nos. 4-99-4106; 4-99-4127
DECISION
BACKGROUND
Complainant filed an appeal with this Commission from the Agency's
October 5, 2007 final order in Douglas Powers et al v. Department of
Transportation, EEOC Hearing Nos. 210-2002-06091X; 210-2002-06117X.
In that final order, the Agency adopted an Administrative Judge's decision
finding that the class agent failed to establish that it discriminated
against a class of employees on the bases of their sex (female) and age
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that he was discriminated against when he
was not selected for a number of positions since 1998. In response,
the Agency argues, among other things, that Complainant is not the
class agent. The Agency also argues that since Complainant claims he
was not selected for positions, his allegations are not of the same
subject matter as set forth in Douglas Powers et al v. Department of
Transportation, EEOC Hearing Nos. 210-2002-06091X; 210-2002-06117X.
Because the record does not indicate that Complainant amended his
complaint to include nonselections and since it appears that no
investigation was conducted as to these matters, we decline to address
them in this appeal. See Hubbard v. Department of Homeland Security,
EEOC Appeal No. 01A40449 (April 22, 2004). However, to the extent that
he has not already done so, Complainant may contact an EEO Counselor
with regard to these additional claims
ANALYSIS AND FINDING
Our regulations provide that "a class agent may appeal a final decision
on a class complaint." 29 C.F.R. � 1614.401(c).1 Because the record
reveals that Complainant is not the individual identified as the class
agent in Douglas Powers et al v. Department of Transportation, EEOC
Hearing Nos. 210-2002-06091X; 210-2002-06117X, we dismiss Complainant's
appeal.2
We note that Complainant contends that the Agency failed to comply with
the Commission's order in Brown v. Department of Transportation, EEOC
Appeal No. 01A13558, (August 20, 2002), requiring the Agency to resume
processing Complainant's remanded claims. Complainant further argues that
he specifically requested that his claims not be subsumed in the class.
In Brown v. Department of Transportation, EEOC Appeal No. 01A13558,
(August 20, 2002), Complainant alleged that "he was subjected to
discrimination on the basis of age when he was disparately impacted as
a result of the implementation of the Agency's October 1998 air traffic
compensation system and "Movement Rules," which caused him to receive
a less beneficial pay increase than similarly situated coworkers."
These claims are identical to those raised by the class agent in Douglas
Powers et al v. Department of Transportation, EEOC Appeal No. 0120080426.
Complainant stated in his July 14, 2009, letter to the Commission that the
Agency informed him via e-mail on February 11, 2003, that this complaint
was subsumed in the Powers class action. We find that the Agency did
not err in doing so since the claims in this case are identical to those
in Douglas Powers et al v. Department of Transportation, EEOC Appeal
No. 0120080426.
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 (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 (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
____1/4/11______________
Date
1 A class member may, however, file an appeal on issues concerning
individual relief after a finding of discrimination.
2 We note, however, that an appeal has been filed by the class agent
and docketed as Douglas Powers et al v. Department of Transportation,
EEOC Appeal No. 0120080426. This case is currently pending before the
Commission.
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0120080756
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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