05A21007
10-08-2002
Peter M. Anderson, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Peter M. Anderson v. Department of Transportation
05A21007
October 8, 2002
.
Peter M. Anderson,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Request No. 05A21007
Appeal No. 01A10979
Agency No. 4-99-4069
DENIAL OF REQUEST FOR RECONSIDERATION
The Department of Transportation (agency) timely initiated a request
to the Equal Employment Opportunity Commission (EEOC or Commission)
to reconsider the decision in Peter M. Anderson v. Department
of Transportation, EEOC Appeal No. 01A10979 (June 19, 2002).
EEOC Regulations provide that the Commission may, in its discretion,
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 underlying decision, complainant alleged he was discriminated
against on the basis of age (D.O.B. November 1, 1941) in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., when he was not selected for an Air Traffic Control
Specialist (ATCS) position in 1998. The final agency decision (FAD) found
that though complainant presented direct evidence of age discrimination,
it nonetheless articulated legitimate, nondiscriminatory reasons for
its actions which show that even absent illegal age discrimination, it
would not have selected complainant for an ATCS position. The Commission
reversed the FAD and concluded that agency failed to carry its burden
of establishing, by a preponderance of the evidence, that it would
not have selected complainant for the ATCS position absent illegal age
discrimination.
In its request for reconsideration, the agency reiterates its
contention that it articulated legitimate, nondiscriminatory reasons for
complainant's non-selection which establish that even absent unlawful age
discrimination, complainant would not have been offered an ATCS position.
We are again unpersuaded by this argument for the reasons set forth in
detail in our underlying appeal decision. Therefore, after a review
of the agency's request for reconsideration, 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. 01A10979 remains the Commission's final decision. The agency
shall comply with the Order in our previous decision as restated below.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
ORDER (C0900)
The agency is ordered to take the following remedial action:
The agency shall immediately offer to place complainant in an Air Traffic
Control Specialist position, or a substantially equivalent position, at
the Minneapolis Air Route Traffic Control Center, Minneapolis, Minnesota.
Complainant shall be given a minimum of fifteen (15) days from the date
of his receipt of the offer within which to accept or decline the offer.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days
after the date this decision becomes final. The 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 the
complainant for the undisputed amount within sixty (60) calendar days
of the date the agency determines the amount it believes to be due.
The 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 provide training for the management of the Air
Route Traffic Control Center, Minneapolis, Minnesota, as to their
responsibilities and obligations under the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
particularly with respect to an employer's obligation to engage in
hiring practices free of age discrimination. The agency shall complete
this action within sixty (60) days of the date that the agency receives
this decision.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Minneapolis Air Route Traffic
Control Center copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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 (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
October 8, 2002
__________________
Date