0120063737
09-21-2007
August J. Holmquist, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security1, Agency.
August J. Holmquist,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security1,
Agency.
Appeal No. 01200637372
Agency No. 7033026
DECISION
On June 5, 2006, complainant filed a premature appeal concerning his
equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is deemed timely since the agency subsequently issued a final
agency decision on November 22, 2006, and the appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
REVERSES the agency's final decision.
On January 8, 2003, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of disability when, on August 6,
2002, he was not selected for a position as Transportation Security
Screener, SV-0019-D at the Orlando, Florida International Airport.
Specifically, complainant claims he could have passed the Physical
Performance Test for the Security Screener position if he had been given
the opportunity to take it. Complainant contends that the agency denied
him the opportunity to take this physical exam (and thereby refused to
hire him) based on the perception that because he was disabled, he could
not pass the test.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge. In February 2004,
complainant requested a final agency decision in lieu of a hearing.
In November 2006, thirty three months later, the agency dismissed the
complaint asserting that the Aviation and Transportation Security Act
(ATSA) "preempted" the Rehabilitation Act, and as such, the complaint
failed to state a claim. However, in Getzlow v. Dept. of Homeland
Security, Appeal No. 0120053286 (June 26, 2007), the Commission determined
that, contrary to the agency's assertions, the ATSA does not divest the
Commission of jurisdiction over complaints alleging discrimination under
the Rehabilitation Act or any other statute the Commission enforces.
In Getzlow, the Commission further found that the complainant must
show that he/she can meet the ATSA-mandated standards in order to be
qualified under the Rehabilitation Act. If this record clearly showed
that complainant could not meet the ATSA-mandated standards, then the
complaint could be properly dismissed. However, the record before us
is too incomplete to draw such a conclusion. In fact, the record before
the Commission contains no formal complaint, no EEO Counselor's report,
no evidence of the ATSA-mandated qualification standards and no copy of
the position description/vacancy announcement at issue. This record is
woefully incomplete.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED. The complaint is hereby REMANDED to the agency for
further processing in accordance with this decision and the ORDER below
ORDER
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. On remand, the agency shall conduct a supplemental
investigation to develop an impartial and appropriate factual record upon
which to make findings on the claim raised in the formal complaint.
Once the supplemental investigation is complete, the agency shall
provide complainant with a copy of it and notify him that he again has
the opportunity to request a hearing before an EEOC Administrative Judge.
See 29 C.F.R. � 1614.108(f).
The agency shall acknowledge to the complainant that it has received
the remanded claim within thirty (30) calendar days of the date this
decision becomes final. The agency shall issue to complainant a copy of
the supplemental investigative file and also shall notify complainant of
the appropriate rights within ninety (90) 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. The agency's delay in issuing its
original final decision in this case is inexcusable. The agency shall
process the remanded claim within the time limits set forth herein.
Any further delay may result in a sanction against the agency.
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
September 21, 2007
__________________
Date
1 This complaint was originally filed with the Department of
Transportation. However, effective March 1, 2003, pursuant to the
Homeland Security Act, this complaint came under the jurisdiction of
the U.S. Department of Homeland Security.
2 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
??
??
??
??
2
0120063737
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036