Carmen V.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Feb 28, 2018

0520170574 (E.E.O.C. Feb. 28, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Carmen V.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Request No. 0520170574

Appeal No. 0120170238

Agency No. 2014-25399-FAA-05

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120170238 (July 14, 2017). EEOC
Regulations provide that the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), 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(c).

In his underlying complaint, Complainant alleged that he was subjected to unlawful
discrimination on the bases of sex (male), age (58 and 59), and in reprisal for prior protected
EEO activity when:

1. on October 24, 2013, he learned that he was not selected for promotion to the
position of Airway Transportation Systems Specialist (Systems Specialist), FV-

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.
0520170574

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2101-I in Dallas-Fort Worth, advertised under Vacancy Announcement ASW-
ATO-13-319-31223; and

2. on February 28, 2014, he was given a Letter of Confirmation of Discussion which
was disciplinary in nature as a form of counseling.

Following an investigation, the matter was assigned to an EEOC Administrative Judge (AJ) for a
hearing. The AJ granted the Agency’s Motion for Summary Judgment on Issue 1 and dismissed
Issue 2 pursuant to 29 C.F.R. §§ 1614.301(a) and .107(a)(4) on the ground that Complainant had
filed a grievance on the same subject. In its final order, the Agency fully implemented the AJ’s
decision.

On appeal, the Commission affirmed the Agency’s final order with respect to Issue 1, finding
that Complainant failed to identify a genuine issue of material fact requiring a hearing.
However, the previous decision reversed that portion of the Agency’s final order pertaining to
the AJ’s dismissal of Issue 2, finding that the record did not contain the portion of the Collective
Bargaining Agreement (CBA) which speaks to whether allegations of discrimination may be
raised in the grievance process, and the related requirement to elect forums. Complainant had
argued that the applicable CBA did not cover claims of discrimination.

In support of his request for reconsideration, Complainant has not submitted any documentation
or arguments calling into question the appellate decision’s conclusion that he failed to raise a
genuine issue of material fact with respect to Issue 1. Nor does the request for reconsideration
discuss the previous decision’s reversal of the AJ’s dismissal of Issue 2. Our review of the
record does not indicate that the appellate decision involved a clearly erroneous interpretation of
material fact or law or will have a substantial impact on the policies, practices, or operations of
the agency. Accordingly, we find that Complainant has failed to demonstrate that the
Commission should reconsider its appellate decision.

After reviewing 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(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 0120170238 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request.

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ORDER

The Agency shall submit, on Complainant’s behalf, a request for a hearing on issue 2 to the
appropriate EEOC Hearings Unit, a brief cover letter explaining its reason for doing so, and a
copy of this decision. The Agency shall provide a copy of this submission to Complainant, his
representative, and as referenced below, the Compliance Officer. The Agency shall complete the
above actions within 30 calendar days from the date of this decision.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)

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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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. 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.

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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. 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

February 28, 2018
Date