Perry L. Myles, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionDec 7, 2007
0520070783 (E.E.O.C. Dec. 7, 2007)

0520070783

12-07-2007

Perry L. Myles, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


Perry L. Myles,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

Agency.

Request No. 0520070783

Appeal No. 0120072391

Agency No. HS06TSA002405

DENIAL

The agency timely requested reconsideration of the decision in

Perry L. Myles v. Department of Homeland Security (TSA), EEOC Appeal

No. 0120072391 (June 29, 2007). 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 the previous decision, the Commission reversed the agency's

final decision dismissing complainant's employment discrimination

claim on the grounds that it failed to state a claim. Specifically,

complainant alleged that he was subjected to discrimination on the basis

of disability (end stage renal) disease when he was denied a reasonable

accommodation in the selection process as a Transportation Security

Officer. The agency dismissed complainant's complaint indicating that

the Aviation and Transportation Security Act (ATSA), "preempted" the

Rehabilitation Act, and as such, that complainant failed to state a claim.

On appeal, the Commission reversed the agency's decision finding that

in Getzlow v. Department of Homeland Security, Appeal, No. 0120053286

(June 26, 2007), the Commission determined that, contrary to the agency's

assertions, the ATSA does not divest the Commission of jurisdiction over

complaints involving security screener positions that raise claims under

the Rehabilitation Act or any other statute that the Commission enforces.

Getzlow v. Department of Homeland Security, Appeal No. 0120053286 (June

26, 2007). Rather a determination of whether a complaint by a security

screener states a claim under the Rehabilitation Act must be made on

a case-by-case basis, and will depend on whether there is a conflict

between the ATSA-mandated qualification standards and the complainant's

Rehabilitaiton Act claim. Id. Here the agency initially rejected

complainant's claim simply because it was filed under the Rehabilitaion

Act, which the agency incorrectly argues is superseded by the ATSA.

In its request for reconsideration, the agency contends that complainant's

disability is in direct conflict with an ATSA-mandated standard for

the security screener position. Upon review, we find that the agency's

argument that complainant's disability (end stage renal disease), which

requires that he receive dialysis three times per week goes to the merits

of complainant's claim rather than to the question of whether or not he

states a justiciable claim of employment discrimination. See Ferrazzoli

v. USPS, EEOC Request No. 05910642 (August 15, 1991). The agency's

arguments here, prematurely address the merits of complainant's complaint

without first having conducting an investigation. The Commission's

previous decision properly determined that complainant stated a claim

of employment discrimination and remanded the matter to the agency for

investigation.

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. 0120072391 remains the

Commission's final decision. There is no further right of administrative

appeal on the decision of the Commission on this request. The agency

shall comply with the Order as set forth below.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

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").

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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).

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 7, 2007

__________________

Date

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0520070783

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0520070783