Alan A. Coleman, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Federal Aviation Administration, Agency.

Equal Employment Opportunity CommissionFeb 28, 2001
05a10034 (E.E.O.C. Feb. 28, 2001)

05a10034

02-28-2001

Alan A. Coleman, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Federal Aviation Administration, Agency.


Alan A. Coleman v. Department of Transportation, Federal Aviation

Administration

05A10034

02-28-01

.

Alan A. Coleman,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

Federal Aviation Administration,

Agency.

Request No. 05A10034

Appeal No. 01A03050

Agency No. 2-00-2021

DENIAL OF REQUEST FOR RECONSIDERATION

The agency initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in

Alan A. Coleman v. Department of Transportation, Federal Aviation

Administration, EEOC Appeal No. 01A03050 (July 19, 2000).<1> 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). For the reasons set forth

below, the Commission denies the agency's request.

Complainant filed a complaint in which he claimed that the agency violated

Title VII of the Civil Rights Act of 1964, the Age Discrimination in

Employment Act (ADEA), and the Equal Pay Act (EPA) by compensating him

at a lower rate than a younger female air traffic controller. The agency

dismissed his complaint for failure to state a claim and complainant

appealed. The previous decision reversed the agency's dismissal of

the complaint and ordered the agency to investigate. In its request

for reconsideration, the agency maintains that the complaint states a

generalized grievance, and that complainant's initial contact with an

EEO counselor was untimely.

In his formal complaint dated August 30, 1999, complainant identified

gender and age as the bases of discrimination on which he based his claim.

He framed his discrimination claim as follows:

As an FG-14, step 6, I had an annual base pay of $79,999, plus the five

percent operational differential ($3,982), and I was also receiving

($3,696) that was estimated to be the pay increase based on facility

reclassification, GS-14/6 to ATC-12/6 (total pay $87,677). I received

my first pay under the new system on June 15, and was shocked to see my

new base pay of $78,664, which now includes the operational differential

(figured at 4.1%) and the supposed increase. Instead of getting an

increase to $88,403 (GS-14 step 6 transitioning to ATC-12 step or band

6), I am now at a level that is $9,739 lower. . . . Now, I work next to

a younger [female] controller (not a rehire) with the same job, requiring

equal skill, effort, responsibilities, and performed under similar working

conditions. Although we both have the same time (seniority) as Full

Performance Level (CPC) Controllers at this facility, and everything else

is equal, this controller next to me is making $9,739 more per year. . .

In another part of the complaint, complaint stated that the agency and

the union negotiated a pay agreement that violated his right to receive

the pay that he was promised.

In its request for reconsideration, the agency again argues that

complainant's allegation is a generalized grievance, and therefore fails

to state a claim. Complainant cannot pursue a generalized grievance that

members of one protected group are afforded benefits not offered to other

protected groups, unless he further alleges some specific injury to him

as a result of the alleged discriminatory practice. Warth v. Seldin,

422 U.S. 490, 499 (1975). Put another way, the Commission has held

that, to the extent that complainant identifies a cognizable claim

of personal harm beyond the generalized grievance, he states a claim.

Crandall v. Department of Veterans Affairs, EEOC Request No. 05970508

(September 11, 1997); Passey v. United States Postal Service, EEOC Appeal

No. 01984974 (February 28, 2000); Gallion v. Department of Transportation,

EEOC Appeal no. 01A00970 (May 22, 2000), request for reconsideration

denied EEOC Request No. 05A00881 (August 15, 2000). In Crandall,

the Commission held that, although the claim that one group of nurses

received more favorable treatment than another group was a generalized

grievance, complainant's claim that her pay should have been adjusted

along with the nurses in the other units was not. Similarly, in Passey,

another complaint concerning a pay package, complainant's contention

that she and other members of her protected group did not receive a $500

award because of their sex stated a claim. The Commission noted that

the aggrieved employee's allegation of a specific harm with regard to

the award money took her claim out of the realm of generalized grievance.

Finally, in Gallion, a case involving the same pay system as the instant

matter, the aggrieved employee's contention that he received a smaller pay

increase than younger, similarly situated employees was not a generalized

grievance.

Applying these principles to the case before us, a claim of a pay cut

of almost $10,000 is most definitely a claim of specific harm that was

not present in Bovinette, Ellis, or any of the other cases cited by the

agency in its request for reconsideration. In the absence of such an

allegation of specific harm, complainant's claim that the agency's pay

system violated his rights would have been a generalized grievance.

However, as in Crandall, Passey, and Gallion, complainant identified

a specific injury with respect to the terms and conditions of his

employment beyond the vague and general assertion that the agency's

pay plan violated his rights. This is enough to state a claim.

Valle v. United States Postal Service, EEOC Request No. 059960585

(September 5, 1997). Therefore, contrary to the agency, we find that the

instant case does not involve the type of challenge to its compensation

system that the Commission found to be a generalized grievance.

We now turn, again, to the timeliness argument. The agency maintains that

the allegedly discriminatory act occurred in April 1999, and that he did

not contact an EEO counselor until July 22, 1999, after the expiration of

the 45-day period. This is contradicted by the EEO counselor's report,

which clearly identifies the date of the alleged discriminatory event

as June 23, 1999, and the 45th day after the event as August 7, 1999.

Complainant's initial counselor contact on July 22, 1999, clearly occurred

before the expiration of the 45-day period on August 7th. The agency

argues that complainant received constructive notice on April 22, 1999,

that PATCO rehires below the full performance level would not receive

the same pay increase as controllers at the full performance level.

Even if complainant did see this notice, it would not have applied to

him, because he was certified at the full performance level on March

28, 1999, and would not have had a reason to believe that the notice

would have affected him. It was not until June 1999 that he learned

of the alleged pay discrepancy between himself and a younger female

controller who, like him, was already at the full performance level.

The agency's argument that complainant failed to timely contact an EEO

counselor finds no support in the record.

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. 01A03050 remains the Commission's final decision.

The agency is directed to carry out the order set forth in our previous

decision. There is no further right of administrative appeal on the

decision of the Commission on this request for reconsideration.

ORDER (E1199)

Unless it has already done so, the agency shall process the remanded claim

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 on which it receives this decision.

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 on which it receives this

decision, 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 an

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 (K0900)

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)(Supp. V 1993). 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

(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

__02-28-01________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.