Herbert M.,1 Complainant,v.Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Nov 23, 2016

0520160496 (E.E.O.C. Nov. 23, 2016)

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

Herbert M.,1
Complainant,

v.

Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Request No. 0520160496

Appeal No. 0120161459

Agency No. 2015-26231-FAA-06

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested reconsideration of the decision in EEOC Appeal No. 0120161459 (July
26, 2016). 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(c).

In his underlying complaint, Complainant alleged that the Agency subjected him to unlawful
age and reprisal harassment and discrimination when: (1) on November 18, 2014, he was
subjected to a hostile working environment and removed from Air Traffic Controller training;
and (2) after pursuing the matter to the Agency's FAA Accountability Board, and the
Accountability Board ruling in his favor, he was retaliated against, beginning in August 2013,
and continuing to the present when he was removed from training on November 13, 2014, was
told he had to move to a different area on March 19, 2014, and he was assigned a new training
program in June 2015, causing him to “start all over professionally” and effectively lose two
years of career development. In its final decision, the Agency dismissed claim (1) for untimely

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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EEO counselor contact; claim (2), for failure to state a claim; and the entire complaint on the
alternative grounds of untimely filing of the formal complaint, pursuant to 29 C.F.R.
§1614.107(a)(2). On appeal, the Commission found that the Agency improperly fragmented
Complainant’s claims and that the allegations set forth in the formal complaint both state a
claim and were raised in a timely manner. With respect to the alternate grounds of dismissal
for untimely filing of the formal complaint, we found that the Agency failed to meet its burden
for establishing timeliness.

In its request for reconsideration, the Agency argues that the Commission erred in finding that
Complainant timely filed his formal complaint. Specifically, the Agency states that
Complainant acknowledged in his formal complaint that he received the notice of right to file
on July 8, 2016, but did not file his formal complaint until July 25, 2016, which is beyond the
15-day time limit. Upon review, we find that we erred in our decision on appeal in stating that
the record did not contain adequate documentation reflecting the date on which Complainant
received the notice of right to file a formal complaint. We also find, however, that the record
contains correspondence from both Complainant and the Agency detailing the confusion
surrounding Complainant’s receipt of the notice of right to file his formal complaint.
Specifically, the record shows that Complainant was scheduled to attend mediation on July 15,
2016, which was beyond the ninety days set out for the informal process. Although
Complainant acknowledges he received the notice on July 8, 2016, he also states that his EEO
counselor led him to believe he was still in the informal counseling period based on the
scheduled mediation and that the fifteen-day time limit for filing the complaint would begin
after the completion of the scheduled mediation.

Additionally, the record contains an email from a program manager in the Agency’s office of
civil rights which states that “some of the template information we typically send the mediation
participants also included language that suggested he would be receiving another contact from
the EEO Counselor following mediation and during that contact he would receive his notice of
right to file.” This email also states that following the mediation, the mediator told
Complainant that an EEO counselor would be “reaching out to issue him the [notice of right to
file].” Based on the foregoing, we find that Complainant's confusion over when he needed to
file his formal complaint was justified.

As such, based on the specific circumstances of this case, we find, based on equitable
concerns, that any brief delay by Complainant in filing his formal complaint should be excused
pursuant to 29 C.F.R. § 1614.604(c). Accordingly, 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. 0120161459 remains the Commission's decision. There is no further right
of administrative appeal on the decision of the Commission on this request. The Agency shall
comply with the Order as set forth herein.

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ORDER

The Agency is ORDERED to take the following actions:

1. Within sixty (60) calendar days from the date that this decision becomes final, the
Agency shall conduct a supplemental investigation, providing Complainant with the
added opportunity to provide any additional information relating to the subject
claims.

2. After conducting this supplemental investigation, the Agency shall submit to the
Hearings Unit of the San Francisco District Office a copy of the existing complaint
file, to the extent that it has not already done so, as well as any documentation from
the Supplemental Investigation identified in point 1 of this ORDER. 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.

A copy of the notice to Complainant transmitting the supplemental investigation and evidence
of submission of all referenced documentation to the Hearings Unit of the San Francisco
District Office shall 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.

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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 23, 2016
Date