U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 a/k/a Lois G., and a/k/a Clora D., et al.1 Class Agents, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Request Nos. 2022004305 and 2022004304 Appeal Nos. 0120121150 and 0120121144 Hearing No. 210-2004-00139X Agency No. 4954012 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal Nos. 0120121150 and 0120121144 (June 27, 2022). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), 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(c). 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2022004305 & 2022004304 2 BACKGROUND In the underlying complaint, the Class Agents, an Administrative Assistant and an Air Traffic Technician, respectively, alleged that the Agency subjected them, and other members of the class of women in clerical and administrative support positions, to discrimination based upon their sex (female) when they were excluded from the Pay Demonstration Project beginning in 1989. This case has a lengthy and complex procedural history dating to June 22, 1994, when the class members initially communicated with the EEO counselor. On August 5, 1994, the class members filed their formal claim. On March 27, 1995, the assigned AJ sua sponte recommended that the Agency dismiss the complaint, as the class had not timely sought EEO counseling; on April 19, 1995, the Agency fully adopted the AJ’s recommended decision. Pursuant to an appeal, in EEOC Appeal No. 01954370 (Oct. 28, 1997), the Commission vacated and remanded the Agency’s final decision, finding that the Agency did not develop the record adequately to determine whether the Class Agents had timely initiated EEO contact. On September 30, 1999, the AJ, again, dismissed the complaint for untimely contact with an EEO counselor. As before, on October 1, 1999, the Agency fully adopted the AJ’s decision. On appeal, the Commission vacated and remanded the Agency's final decision, finding the complaint timely because the Class Agents had initiated EEO Counselor contact within 45 days of receiving a paycheck, and “each paycheck they have received since the Project began constitutes a separate actionable claim.” EEOC Appeal No. 01A00571 (June 14, 2001) (citing Bazemore v. Friday, 478 U.S. 385 (1986); Dale v. Small Bus. Admin., EEOC Request No. 05980124 (July 10, 2000)), req. for recon. denied, EEOC Request No. 05A10933 (Sept. 30, 2003). On May 25, 2004, the AJ issued a decision granting class-certification. On July 2, 2004, the Agency issued a final decision rejecting the AJ’s decision. In EEOC Appeal No. 07A40116 (Apr. 6, 2006), the Commission vacated the Agency’s final decision. The Commission denied the Agency’s request for reconsideration. On January 7, 2008, the AJ dismissed the claim for untimely EEO contact and, on February 13, 2008, the Agency issued an order fully adopting the AJ’s decision. The Commission found, in EEOC Appeal Nos. 0120081469, 0120081470 (Nov. 6, 2009), that the Class Agents had made timely contact with an EEO Counselor. On November 14, 2011, the AJ, again, dismissed the complaint. The Agency final order implemented the AJ’s decision. The Class Agents appealed. On appeal, in EEOC Appeal Nos. 0120121150 and 0120121144, the Commission vacated the Agency’s final order adopting the AJ’s decision. The Commission, specifically, found that the disparate-impact method of proof applies to Title VII claims of compensation discrimination based on sex and the analysis necessarily includes consideration of alternative employment practices that would serve the employer’s interests and have less disparate-impact on a protected group. 2022004305 & 2022004304 3 These requests followed. In its requests for reconsideration, the Agency argues the decision contradicts Section 10-V of the EEOC’s Compliance Manual. The Agency asserts that “sex- based Title-VII disparate impact cases upon a showing of a statutory authorized affirmative defense the exploration of alternatives is not required.” The Agency further argues that the doctrine of laches should be considered “because the Decision will prejudice the Agency by reopening the case to litigate alternatives of policy decisions made over thirty years ago, with several institutional generations in the interim, and witnesses may not be alive or available.” ANALYSIS AND FINDINGS The Commission may afford a grant of reconsideration when the appellate decision involved a clearly erroneous interpretation of material fact or law or will have a substantial impact on the policies, practices, or operations of the Agency. 29 C.F.R. § 1614.405(c). In its brief, the Agency raises numerous arguments as to their position that the Commission incorrectly applied the law in their case. Upon review of the brief and the previous decision, we find that, while there are differences in the interpretation of the law, there is no instance in which the Commission incorrectly applied the law or applied the law in a way that it was precluded from applying. “[The Agency's] continued difference of opinion and interpretation of the [law, as applied to the facts at bar,] does not establish that the prior decision clearly erred in its interpretation of the facts and law in this matter.” Carmona v. Dep’t of the Treasury, EEOC Appeal No. 0120071402 (Nov. 16, 2007). Rather, “[a] finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” See Henson v. City of Dundee, 682 F.2d 897, 906 (11th Cir. 1982) (quoting U.S. v. U.S. Gypsum Co., 438 U.S. 422 (1978)). The Commission finds no evidence of such error in the previous decision. To the extent that the Agency argues that the doctrine of laches should apply, the Commission cannot agree. While it is true that policy decisions were “made over thirty years ago, with several institutional generations in the interim, and witnesses may not be alive or available,” the Agency cannot, within the confines of this case, assert that they are entitled to “an equitable remedy under which an individual's failure to diligently pursue their actions can bar their claims.” Avery S. v. Dep't of the Treasury, EEOC Request No. 2020000221 (Jan. 22, 2020) (quoting O'Dell v. Dep't of Health and Human Servs., EEOC Request No. 05901130 (Dec. 27, 1990). As an initial matter, the Commission notes that the issue of timeliness has been previously litigated, and the Commission found that the Class Agents were timely in their filing of their claim. Class Agents have been diligently pursuing this complaint since 1994. The Agency now seeks to evade compliance with the Commission’s decision by asserting that information which was almost certainly available at the time of the claim is no longer available. Cf. LaBerrie v. Dep’t of Health and Human Serv., EEOC Appeal No. 01982195 (Mar. 7, 2002). It is inconsistent with the doctrine of laches to apply it to a situation in which the Agency could have kept documentation and obtained sworn statements, but may not have chosen to do so, and we decline to apply this doctrine here. 2022004305 & 2022004304 4 The Commission emphasizes that a request for reconsideration is not a second appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here. The Commission finds that the Agency has not presented any argument or evidence tending to establish the existence of either reconsideration criterion. CONCLUSION After reviewing 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(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal Nos. 0120121150 and 0120121144 remains the Commission's 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 The Agency shall initiate a request for the assignment of an Administrative Judge to the Hearings Unit of the EEOC Chicago District Office within fifteen (15) calendar days of the date this decision becomes final. The Agency shall cooperate with the Compliance Officer, who will monitor the Agency’s progress in providing the record to the Hearings Unit.2 The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint files has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge and the agency shall act pursuant to 29 C.F.R. § 1614.204. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 2 We take administrative notice that, during the pendency of these proceedings, the Agency closed its Chicago office, where the record of this complaint was held. Given this unique circumstance, the Agency will work with the Compliance Officer to ensure that the record is provided to the District Office in a timely fashion. 2022004305 & 2022004304 5 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610) This decision requires the Agency to continue its administrative processing of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2022004305 & 2022004304 6 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 15, 2023 Date
