[Redacted], Arthur F., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Sep 29, 2022

Appeal No. 2022003404 (E.E.O.C. Sep. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arthur F.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2022003404 Agency No. 2022-29293-FAA-05 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 13, 2022, dismissing his complaint alleging unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND On January 29, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African American/Black), disability, age (born 1947), and reprisal for prior protected EEO activity. The Agency accepted the formal complaint for investigation and framed the claims as follows: 1. The Agency failed to comply with an EEOC order dated April 28, 2021, which found in Complainant’s favor. 2. The Agency miscalculated Complainant’s back pay, annual leave, sick leave, and starting salary retroactively to February 19, 2011. The starting salary was 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. 2022003404 2 approximately $20,000 below what it should be in accordance with an EEOC Decision and other federal statutes. 3. On November 16, 2021, the Agency gave Complainant a full-time employment offer with a 48-hour deadline for him to accept or reject it. 4. On an unspecified date, the Agency returned Complainant to its employment rolls from the Office of Workers’ Compensation Program (OWCP) benefits roll. 5. On an unspecified date, the Agency created a Standard Form-50 (SF-50) with an incorrect service computation date. 6. On an unspecified date, Complainant was denied the 45-day continuation of pay for a traumatic injury he suffered while he was on duty on August 5, 1998, which was accepted by the OWCP. 7. On an unspecified date, Complainant was denied a 10-hour Incentive Award granted for outstanding support and participation with regards to the Air Traffic System Requirements Service. 8. On an unspecified date, Management failed to provide a requested status update on Complainant’s leave and life insurance to the Agency’s Benefits and Operations Center Manager for the Manager to process his Immediate Retirement application. 9. On an unspecified date, Management gave Complainant false information that management had not received his Official Personnel File (OPF) from the National Records Center, and that the Agency needs his records from the National Records Center to calculate his benefits and process his Immediate Retirement. On March 9, 2022, Complainant learned that his OPF was found at the Agency’s headquarters in a box. On April 13, 2022 the Agency dismissed the entire complaint. It dismissed claims 1, 2, and 5 for alleging dissatisfaction with the processing of a prior complaint, pursuant to 29 C.F.R. § 1614.107(a)(8). Claim 3 was dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Citing 29 C.F.R. § 1614.107(a)(2), the Agency dismissed claims 4, 6, 7, 8 and 9 for raising a matter that has not been brought to the attention of an EEO counselor. Further “to the extent that” claims 4, 6, 7, 8 and 9 “alleged incidents that violated the FECA” the Agency dismissed the claims as a collateral attack on the proceedings of another forum, specifically, the OWCP. The instant appeal followed. Complainant submitted a brief in support of his appeal expressing his disagreement with the Agency’s dismissal of his complaint. The Agency submitted a brief in response. 2022003404 3 ANALYSIS AND FINDINGS As an initial matter, we note that the Agency failed to provide the Commission with a copy of Complainant's formal complaint. Despite the deficiency, we find that Complainant does not challenge the Agency’s statement of his claims. Further, Complainant filed an appeal brief, and several documents indicating that claims 1 through 9 were the issues in his formal complaint. Claims 1, 2, 3 and 5 The Agency dismissed claims 1, 2, and 5 on the ground that they alleged dissatisfaction with the processing of a prior complaint pursuant to 29 C.F.R. § 1614.107(a)(8). Dissatisfaction with the EEO process must be raised within the underlying complaint, not as a new complaint. See EEOC - Management Directive 110 (MD-110) 5-23, 5-25 to 5-26 (November 9, 1999). In claims 1, 2, and 5 Complainant alleges that the Agency failed to comply with the Commission’s Order in Request No. 2020002907, where the Commission ordered the Agency to place Complainant into the position of Airway Transportation Systems Specialist, FV-2101-J (or a substantially similar position) with appropriate benefits retroactive to February 19, 2011. According to our records, Complainant filed a Petition for Enforcement on this matter in EEO (Petition No. 2022004962). Therefore, we find that the Agency’s dismissal of claims 1, 2, and 5 was proper. Claim 3 also concerns compliance with the Commission’s Order in Request No. 2020002907. On November 16, 2021, the Agency offered Complainant an Airway Transportation Systems Specialist, FV-2101-J position retroactive to February 19, 2011, and provided 48-hours for him to accept or reject the job offer. Complainant alleges that the 48-hour deadline was a consorted effort to harass and retaliate against him, and that the Agency failed to comply with regulations which give an aggrieved individual 15 days to accept or reject an offer. According to Complainant, despite informing the Agency of the 15-day deadline, the Agency did not change the deadline, so he signed the job offer under “duress.” As discussed above, dissatisfaction with the EEO process must be raised within the underlying complaint, not as a new complaint. Although the Agency dismissed claim 3 for other reasons, we find that dismissal under 29 C.F.R. § 1614.107(a)(8) is proper because claim 3 involves dissatisfaction with the processing of the Order in Request No. 2020002907. Claims 4 and 6 Claim 4 concerns Complainant’s placement on the OWCP’s benefits roll and claim 6 concerns his traumatic injury claim pending before the OWCP. The Commission has generally held that complaints involving other administrative proceedings, including those involving the OWCP and its related processes, do not state a claim within the meaning of its regulations. See Hogan v. Department of the Army, EEOC Request No. 05940407 (Sept. 29, 1994). See Schneider v. United States Postal Service, EEOC Request No. 05A01065 (Aug. 15, 2002) (rejecting complainant's claim that the Agency's delay in processing her OWCP paperwork constituted 2022003404 4 harassment); Bell v. Department of Transportation, EEOC Appeal No. 01991806 (Jan. 11, 2001) (dismissing a discrimination complaint alleging that the agency submitted inaccurate and incomplete information to the Department of Labor while processing the complainant's OWCP claim). Therefore, we find the proper forum for Complainant to have raised claims 4 and 6 was with the OWCP. The Commission does not have jurisdiction over these claims and their dismissal was appropriate. Claims 7, 8, and 9 Claims 7, 8, and 9 were dismissed pursuant to 29 C.F.R. § 1614.107(a)(2). The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO counselor and is not like or related to a matter on which the complainant has received counseling. A later claim is “like or related” to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could reasonably been expected to grow out of the original complaint during the investigation. See Scher v. United Postal Service, EEOC Request No. 05940702 (May 30, 1995). In claim 7, Complainant contends that he was denied an award for his participation in the Air Traffic System Requirements Service. The EEO Counselor’s Report, dated January 31, 2022, shows that Complainant raised “awards” as an issue of contention during counseling. In addition, the record contains an August 25, 2021 email which shows that Complainant asked a Human Resource Specialist (RMO1) to restore his incentive award from the Air Traffic System Requirements Service. Given the foregoing, we find that claim 7 was brought to the attention of the EEO counselor. Therefore, the Agency’s dismissal of claim 7 was improper. In claims 8 and 9 Complainant raises issues with management processing his retirement and benefits. On appeal, Complainant connects these claims to the RMO1’s failure to correctly calculate his service start date. Complainant submits an email from August 25, 2021 to support his argument. In the email, Complainant informs RMO1 that there are issues with his service start date, and that he started working for the federal government on November 27, 1965. Notably, the EEO Counselor’s Report reveals that during counseling Complainant stated that he wanted the Agency “to correctly compute his service . . . [start date as] November 27, 1965, and not February 2011.” The Counselor made a note that Complainant “believes a service computation of the latter [date] is an additional example of a practice and pattern of harassment [and] retaliation.” The EEO Counselor also took note of Complainant’s contention that he had lost “over one year of accrued leave,” which also impacts his retirement pay. The Commission finds that the retirement and benefit issues Complainant raised in claims 8 and 9 could reasonably be expected to grow out of the issues he raised with the EEO counselor. The Agency’s dismissal of claims 8 and 9 was improper. As noted above, the Agency also dismissed claims 7, 8, and 9 as a collateral attack on the OWCP process, “to the extent you are claiming any of the alleged incidents violated the FECA. . .” 2022003404 5 However, it is not clear that Complainant’s allegations concern the processing of his retirement by another entity. Thus, the Agency has failed to substantiate the bases for its final decision. See Marshall v. Dep’t of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). CONCLUSION Based on a thorough review of the record and the contentions on appeal, the Agency’s dismissal is AFFIRMED in part and REVERSED in part. The Agency’s dismissal of claims 1, 2, 3, 4, 5, and 6 are AFFIRMED. The dismissal of claims 7, 8, and 9 is REVERSED and the claims are REMANDED to the Agency for further processing in accordance with this decision and the Order below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 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. 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). 2022003404 6 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2022003404 7 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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. 2022003404 8 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 September 29, 2022 Date