0120162659
11-08-2016
Gaynell A.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration (FAA)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gaynell A.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration (FAA)),
Agency.
Appeal No. 0120162659
Agency No. 2015-26330-FAA-02
DECISION
On August 15, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated July 29, 2016, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for the position of Air Traffic Control Specialist (ATCS) with the FAA.
On June 29, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race (White) and sex (female) when it failed her on her pre-employment biographical assessment administered through the online application system, stopping her application from going forward.
In her report, the equal employment opportunity counselor wrote that Complainant relayed that on or about May 22, 2015, from watching an investigative report on Fox 11 News, she learned that other applicants were supplied answers to the biographical assessment by FAA employees, and she was not given a fair chance to pass due to cheating by other applicants.
On July 17, 2015, and again on October 29, 2015, the Agency notified Complainant that because her individual complaint was within the definition of an administrative class complaint pending before an Equal Employment Opportunity Commission Administrative Judge (AJ), it subsumed her individual complaint into the class complaint. The administrative class complaint was filed on or about April 14, 2014. The Agency complaint number of the class complaint is 2014-25526-FAA-02, and the EEOC Hearing No. was 570-2014-00830X. The putative class agent was represented by counsel who signed the class complaint.
In the class complaint, which regarded applicants for ATSC positions, the putative class agent alleged the following. Prior to January 2014, graduates from Air Traffic-Collegiate Training Initiative (CTI) institutions were required to pass an air traffic aptitude test, known as the Air Traffic Control Selection and Training examination (AT-SAT). Applicants who passed were placed on a Qualified Applicant Register or List comprised of 3,000 - 3,500 applicants - given hiring preference. In December 2013, the Agency eliminated the list, resulting in the class discriminatorily losing their employment preference and opportunity. The class was comprised of applicants who possessed a CTI institution degree, passed the AT-SAT assessment, and were placed on the List. By email, the Agency announced that there would be a revised testing process for applicants comprised of a biographical questionnaire completed as part of the application process and the cognitive portion of the AT-SAT.
In her complaint, Complainant wrote that she was enrolled in a CTI institution.
On June 30, 2016, the AJ dismissed the above administrative class complaint without prejudice on the ground that the putative class agent filed civil action 2:15-cv-02654 raising the same claims and allegations in his administrative class complaint which the AJ described as:
he was subjected to discrimination and disparate impact based on his race, color, religion, sex or national origin, when inter alia the Agency purged its Qualified Applicant Register and adopted a new hiring practice for Air Traffic Controllers in order to increase racial diversity of Air Traffic Controller applicants.
The civil action complaint, which is a class action, was filed on December 20, 2015, and was amended on April 18, 2016. It was filed in the United States District Court for the District of Arizona.
In its FAD, the Agency wrote that in her complaint Complainant alleged she was discriminated against in reference to the ATCS application assessment process in place since February 2014. The Agency dismissed Complainant's complaint on the ground that it was within the scope of civil action 2:15-cv-02654.
ANALYSIS AND FINDINGS
If an administrative class complaint is certified, all individual complaints that raise claims identical to the definition of the class claim(s) shall be subsumed within the class complaint. When the class claim proceeds to a hearing on the merits, the subsumed individual claim(s) may be presented during the liability stage by the class agent, or at the remedy stage by the individual complainant. If class-wide discrimination is not found, the agency shall process each individual claim that was subsumed into the class complaint. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 8-4 (Revised Aug. 5, 2015); 29 C.F.R. �1614.204(k)(2).
Complainant's individual complaint is not within the definition or scope of the class complaint. When she filed her individual class complaint, she was not a graduate of CTI institution, nor is there any evidence she was on the Qualified Applicant Register - requirements for being a member of the class. Complainant's complaint does not regard the ATCS application process matters alleged in the class complaint. Given this, we find that the Agency wrongly subsumed Complainant's individual complaint into the class complaint, and wrongly dismissed it on the ground that it was within the scope of civil action 2:15-cv-02654 (which tracks the administrative class complaint.
The FAD is REVERSED, as well as the Agency's decision to subsume Complainant's individual complaint into the above class complaint.
ORDER
The Agency is ordered to issue a letter rescinding its decisions to subsume Complainant's individual complaint into the above referenced administrative class complaint within 30 days of the date this decision is issued, and to resume processing Complainant's complaint in accordance with 29 C.F.R. Part 1614.
A copy of the Agency's letter rescinding its decisions to subsume Complainant's complaint must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (R0610)
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 (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
November 8, 2016
__________________
Date
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.
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