0120062837
01-09-2007
Robert T. Wiese, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Robert T. Wiese,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01200628371
Agency No. 2005-19669-FAA-02
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated March 10, 2006, dismissing his formal complaint of
unlawful employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. �
1614.405.
In February 2005, the agency announced that it would eliminate positions
at fifty-eight Automated Flight Service Stations over the following
seven months. The record reflects that a private contractor, Lockheed
Martin, was to assume total control of the Flight Service portion of Air
Traffic Control. Complainant was an Air Traffic Control Specialist who
was affected by the announcement.
Believing that he was subjected to discrimination based on age,
complainant initiated contact with an agency EEO office. Informal efforts
to resolve complainant's concerns were unsuccessful.
On July 28, 2005, complainant filed the instant formal complaint.
Therein, complainant claimed that he was discriminated against when
he was not selected for the position of Air Traffic Control Specialist
(CPC-ATC-7), AT-2152-GH, under Vacancy Announcement ACE-AAT-05-ACT7-77896.
Complainant claimed that instead of using the established rating
system, the agency employed a "secret rating system" for bid at issue.
Complainant asserted that as a consequence, younger controllers were
selected over older controllers.
By letter dated February 15, 2006, the agency informed complainant that
his formal EEO complaint came within the definition of a class complaint
currently pending in U.S. District Court. The class agents defined the
class as all Flight Service Air Traffic Control Specialists employed
by the FAA who are over 40 years of age and adversely affected by the
FAA's decision to eliminate federal employment and related benefits
within the seven months at the 58 Automated Flight Service Stations as
announced by the FAA on February 1, 2005. The agency decided to hold
complainant's complaint in abeyance until a decision was made regarding
the certification of the class complaint.
Thereafter, on March 10, 2006, the agency issued a final decision,
dismissing complainant's individual EEO complaint on the ground that
it is the basis of a pending civil action in a U.S. District Court.
The agency noted that at least 180 days had passed since the filing
of the complaint and therefore it should be dismissed pursuant to 29
C.F.R. � 1614.107(a)(3).
On appeal, complainant acknowledges that he is a member of the class
action identified by the agency. However, complainant asserts that
his individual complaint addresses a separate and distinct action.
Specifically, complainant asserts that the class addresses age
discrimination "when the FAA chose to outsource Flight Service", whereas,
the instant formal complaint concerns actions which "came after the FAA
had already chosen Lockheed Martin as the winner of the bidding process."
Complainant reiterates that the selection process was discriminatory.
He contends that the use of a "secret rating system" for the bid resulted
in the selection, at his facility, of only employees under the age of
forty and none of the experienced employees over the age of forty.
The regulation set forth at 29 C.F.R. � 1614.107(a)(3) allows for the
dismissal of a complaint that is pending in a United States District
Court in which the complainant is a party. Commission regulations
mandate dismissal of the EEO complaint under these circumstances so as to
prevent a complainant from simultaneously pursuing both administrative and
judicial remedies on the same matters, wasting resources, and creating
the potential for inconsistent or conflicting decisions, and in order
to grant due deference to the authority of the federal district court.
See Shapiro v. Department of the Army, EEOC Request No. 05950740 (October
10, 1996); Stromgren v. Department of Veterans Affairs, EEOC Request
No. 05891079 (May 7, 1990); Kotwitz v. United States Postal Service,
EEOC Request No. 05880114 (October 25, 1988).
The record contains a copy of a class action complaint filed in
the United States District Court for the District of Columbia,
Breen et al. v. Department of Transportation, Case No. 1: 05CB00654.
The plaintiffs filed on their own behalf, and on behalf of a class of
all Flight Service Air Traffic Control Specialists, who are over the
age of forty, and who are adversely affected by the agency's decision to
eliminate federal employment and related benefits at 58 Automated Flight
Service Stations, as announced by the agency in February 2005. A review
of the class complaint reveals that the agency will be removing almost
2,000 Flight Service Controllers, over 90 percent of whom are over the
age of 40. The elimination of federal positions will adversely affect the
retirement eligibility and benefits of the Flight Service Controllers.
The Commission finds that the agency erred in its dismissal
of complainant's individual EEO complaint. As noted above, the
complaint claims unlawful employment discrimination in the selection
process for a particular vacancy announcement (ACE-AAT-05-ATC7-77896).
The purportedly discriminatory scoring process used to fill the vacancy,
as described in the complaint, is not the subject of the class complaint.
There is no reference to this vacancy in the civil action complaint.
While complainant was applying for this position because his former
position had been eliminated by the agency under circumstances challenged
in the class complaint, complainant is not, in this instance, challenging
the elimination of his former position with its negative effect on
his retirement and other benefits. Rather, the subject of his current
individual complaint concerns the specific non-selection for another
position, which he alleges was the result of discrimination. The agency
has not established that this individual complaint raises the identical
claim to the one raised in the class action currently before the court.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
ORDER 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.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
January 9, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
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0120062837
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120062837