Alan A. Coleman, Complainant,v.Rodney Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionJul 19, 2000
01a03050 (E.E.O.C. Jul. 19, 2000)

01a03050

07-19-2000

Alan A. Coleman, Complainant, v. Rodney Slater, Secretary, Department of Transportation, Agency.


Alan A. Coleman v. Department of Transportation

01A03050

07-19-00

.

Alan A. Coleman,

Complainant,

v.

Rodney Slater,

Secretary,

Department of Transportation,

Agency.

Appeal No. 01A03050

Agency No. 2-00-2021

DECISION

Pursuant to 64 Fed. Reg. 37,644, 37, 659 (1999) (to be codified at 29

C.F.R. � 1614.405), the Commission accepts the complainant's appeal

from the agency's final decision in the above-entitled matter.<1>

Complainant, an air traffic controller, claimed that the agency violated

Title VII of the Civil Rights Act of 1964, 42 U.S.C. � 2000e, et seq,

The Age Discrimination in Employment Act of 1967, 29 U.S.C. � 633a,

and The Equal Pay Act of 1963, 29 U.S.C. � 206(d) 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,

in its response to complainant's appeal, it argued, for the first time,

that complainant did not contact an EEO counselor within the 45-day time

limit set forth in the Commission's regulations.

In order to state a claim of unlawful employment discrimination,

complainant must show that she suffered harm with respect to the terms,

conditions, or privileges of her employment. Valle v. United States

Postal Service, EEOC Request No. 05960585 (September 5, 1997). In both

its final decision, and in its response to complainant's appeal, the

agency characterized complainant's claim as a generalized grievance in

which he did not allege any specific harm, loss, or injury to himself. On

page (3) of his formal complaint, however, he specifically stated that

he received a base pay that was $9,739 lower than the base pay given to

a younger female controller who was ostensibly at the same grade level

as he was. Thus, we find that the agency mischaracterized complainant's

claim.

On the issue of untimely counselor contact, the agency appears to

be arguing that complainant had constructive notice of what his base

pay would be on April 27, 1999, when the memoranda of understanding

between the agency and the union was adopted. The agency states that

complainant's initial contact with the EEO counselor on July 22, 1999

was untimely. However, the agency never presented any documentation

establishing when complainant had actual or constructive notice of the

two memoranda. Moreover, the agency has not presented any evidence

tending to establish that complainant should have had reasonable

suspicion of discrimination prior to when the 45-day period started

to run. We therefore find that the agency failed to establish that

complainant's initial contact with the EEO counselor was untimely.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to REVERSE the agency's final decision

and to REMAND the matter for investigation, in accordance with our order

below.

ORDER (E0400)

The agency is ORDERED to process the remanded complaint in accordance

with 64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to the

complainant that it has received the complaint 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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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, Acting Director

Office of Federal Operations

_07-19-00_________________

Date

__________________

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

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

Commission's website at www.eeoc.gov.