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Act, which the agency incorrectly argues is superseded by the ATSA.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