0120121050
04-25-2012
John E. Mackey, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
John E. Mackey,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120121050
Agency No. 2011-24199-FAA-01
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 23, 2011, dismissing his 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. Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a) (1) for failure to state a claim.
BACKGROUND
During the period at issue, Complainant worked as a Aviation Safety Inspector-1825-13 at the Agency's Phoenix CMO facility in Phoenix, Arizona. On November 8, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African American), color (black), and in reprisal for prior protected EEO activity.
On November 23, 2011, the Agency issued a final decision. Therein, the Agency determined that the formal complaint was comprised of the following claim:
effective September 25, 2011, Complainant was administratively reassigned from the position of Aviation Safety Inspector, FG-1825-13, in the Eastern Region, Pittsburgh CMO, with a duty location in Phoenix, Arizona, to Aviation Safety Inspector, FG-1925-13, in the Western Pacific Region, Phoenix, Arizona.
The Agency dismissed the formal complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.106(a)(1). The Agency stated that as a result of a directed reassignment, Complainant's pay and grade were unchanged, his general duties did not change, and his new duty station was within the commuting area. Accordingly the Agency concluded that the reassignment was not an adverse action. As to Complainant's assertion that the potential for higher pay grades in the Pittsburgh office exist, that will need to be filled, the Agency found that his reassignment does not preclude him from applying for those higher pay grade positions when, and if, they become available.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency misconstrued the matter raised in his formal complaint. Complainant asserts that a previously filed EEO complaint had been resolved by a settlement agreement, which granted him a temporary promotion for one year. Complainant argues, however, that upon his return to his previous position and grade, a promotional position became available within his employment unit. He claimed that as the assistant to position, having previously served at the grade and position, and being technically qualified for the position, he was the logical choice to fill the vacancy. Complainant alleged that he was removed from eligibility for the vacant position by the involuntary transfer to another employment unit and that an unqualified person was posted to that position. Complainant therefore asserts that the crux of his formal complaint is that (a) he was denied a promotion because of his race, color and in reprisal for his prior EEO activity and (b) that this denial was effected by the deliberate manipulation of his assignment.
ANALYSIS AND FINDINGS
The Agency improperly dismissed Complainant's formal complaint for failure to state a claim. The only questions for an agency to consider in determining whether a complaint states a claim are: (1) whether complainant is an aggrieved employee: and (2) whether complainant raises employment discrimination on a basis covered by EEO statutes. If these questions are answered in the affirmative, an agency must accept the complaint for processing regardless of its judgment of the merits. See Odoski v. Department of Energy, EEOC appeal No. 01901496 (April 16, 1990).
Here, Complainant in his formal complaint is alleging that after he returned to his previous position and grade, a promotional position became open within his employment unit; and that having served as the assistant to the vacant position, he was technically qualified for the vacant position. Complainant asserts further that he was the logical choice to fill the vacancy. He claims that he was removed from eligibility for the vacant position by an involuntary transfer to another employment unit and that unqualified individual was placed in the position. Complainant argues that the Agency misconstrued his complaint as relating only to a lateral transfer, and by not addressing the purported denial of a promotion as a result of a deliberate manipulation of his assignment. Complainant has stated an actionable claim. Complainant has shown an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Accordingly, the Agency's final decision dismissing Complainant's formal complaint is REVERSED. The formal complaint, as defined herein, is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) 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.
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 (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 (M0610)
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 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 77960, Washington, DC 20013. 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 (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
April 25, 2012
__________________
Date
2
0120121050
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121050