0520110547
12-16-2011
Gerald R. Chambers, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Gerald R. Chambers,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Request No. 0520110547
Appeal No. 0720100009
Hearing No. 160-2003-08562X
Agency No. DOT-1-98-1025
DENIAL
Complainant timely requested reconsideration of the decision in Gerald
R. Chambers v. Department of Transportation, EEOC Appeal No. 0720100009
(June 10, 2011). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to 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).
BACKGROUND
The previous decision vacated an EEOC Administrative Judge’s (AJ)
finding of discrimination based on age in relation to Complainant’s
claim that he had been subjected to disparate treatment when he was not
selected for the position of Air Traffic Control Specialist, and disparate
impact through the Agency’s policy of requiring former Professional
Air Traffic Controllers Organization (PATCO) controllers re-entering
employment with the Agency to apply only under Recruitment Notice 93-01.
We found that the AJ had based her finding of discrimination on a
disparate impact theory of discrimination, even though the parties
had not been given the opportunity to produce statistical evidence or
other evidence and arguments related to a disparate impact claim during
the hearing. We remanded the complaint for a further hearing at which
the parties could more fully litigate the disparate impact claim.
Additionally, in response to Complainant’s objections, the previous
decision specifically found that the Agency’s brief in support of its
appeal was timely filed on December 22, 2009.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant raises two arguments.
First he argues that the Agency’s brief in support of its appeal was
due on December 21, 2009, pursuant to a letter of extension issued by
this Office to the Agency granting it additional time to file its brief.
He also argues that the Agency’s brief in opposition to his cross-appeal
(filed on November 25, 2009, docketed as EEOC Appeal No. 0120100638, and
closed on August 6, 2010) was also untimely filed on December 30, 2009.
He presents evidence that at least one Agency counsel’s office had
received it on November 27, 2009. Complainant posits that the untimely
filing of the Agency’s briefs should have resulted in the Commission
not considering the Agency’s arguments.
Complainant secondarily argues that the complaint should not be returned
for a new hearing or additional evidence on the disparate impact claim,
and that “[a]ll information to make a just decision is on the record.”
In its response to Complainant’s request for reconsideration, the Agency
argues that its December 22, 2009, brief was timely filed. It produced
evidence that it was unable to submit a brief on December 21, 2009, due
to the closing of federal government offices in Washington, D.C. on that
date in response to a severe snowstorm. U.S. Postal Service mail service
was also suspended. The Agency argues that it submitted its brief on
the very next day, when federal offices reopened. The Agency argues that
its opposition brief to Complainant’s cross-appeal was timely filed on
December 30, 2009, as it had received his brief on November 30, 2009,
and that Complainant’s own certificate of service indicated that it
had been mailed on November 27, 2009 (a Friday). It indicated that it
had relied on Complainant’s certificate of service to calculate the
date on which he mailed his appeal. The Agency argued that the dispute
over the December 30, 2009, brief in opposition was moot due to the
“dismissal” of Complainant’s appeal.
DETERMINATION
We find that the Agency’s December 22, 2009, brief in support of
its appeal was timely filed, and properly considered. Pursuant to
29. C.F.R. § 1614.604(d), when computing time frames, if the last day
of the period falls on a Saturday, Sunday or Federal holiday, “the
period shall be extended to include the next business day.” We find
that a situation in which federal offices are closed and mail service
suspended is akin to a Federal holiday, and so find that the one-day
delay in service was justified.
We additionally find that the Agency’s brief in response to
Complainant’s cross-appeal was timely filed, as Agency counsel
relied on Complainant’s certificate of service, which stated that
it had been mailed on November 27, 2009. Although Complainant later
provided proof of mailing his appeal and brief on November 25, 2009, the
Agency’s calculation of thirty days from its receipt of the document
on November 30, 2009, would make a December 30, 2009 filing timely.
We therefore find that the Agency’s opposition brief was timely, and
properly considered in the previous decision. We also find that the
Agency’s position that the timeliness argument regarding its brief in
opposition is in any event moot due to the dismissal of Complainant’s
appeal is incorrect. The decision in EEOC Appeal No. 0120100638 did
not dismiss Complainant’s cross-appeal, but merely closed the record
and consolidated Complainant’s cross-appeal and the Agency’s appeal
into one decision for the purposes of judicial economy.
Finally, we find that Complainant has not shown that the previous decision
involved a clearly erroneous interpretation of fact or law, or that it
would have a substantial impact on the policies, practices or operations
of the Agency. Although he argued that the numerous procedural rulings
have delayed the resolution of his case, we find that he has not shown
that the previous decision was incorrect.
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(b), and it is the decision of the Commission to DENY
the request. The decision in EEOC Appeal No. 0720100009 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
ORDER
The Agency shall submit to the appropriate EEOC Hearings Unit the
request for a hearing on the disparate impact claim as discussed in
EEOC Appeal No. 0720100009 within fifteen (15) calendar days of the
date this decision becomes final. The Agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The Agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on
the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency
shall issue a final action in accordance with 29 C.F.R. § 1614.110.
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.
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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 16, 2011
Date
2
0520110547
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110547