0120160542
04-06-2016
Otto D.,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
Otto D.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration (FAA),
Agency.
Appeal No. 0120160542
Agency No. 2015-26492-FAA-06
DECISION
On November 5, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated October 22, 2015, dismissing his equal employment opportunity (EEO) complaint of unlawful discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a "permanent" Staff Support Specialist at the Agency's Air Route Traffic Control Center in Los Angeles.
On January 22, 2015, Complainant filed a civil action complaint in the United States District Court for Central District of California, case 2:15-cv-00462, which at the invitation of the Court he amended twice to address pleading deficiencies.
The Court construed that in his civil action, Complainant alleged that he was discriminated against based on his disability in violation of the Rehabilitation Act on four claims: (1) disparate impact in the accrual of retirement benefits, (2) disparate treatment in the accrual of retirement benefits, (3) disparate impact in promotional eligibility, and (4) disparate treatment in promotional eligibility. On accrual of retirement benefits, Complainant contended that "permanent" Staff Support Specialists accrued them at the rate of 1% of annual salary, and "temporary" Staff Support Specialist's accrued them at a rate of 1.7% of annual salary. Regarding promotional eligibility, the Court wrote that Complainant alleged that his medical condition prevented him from performing operational duties required for promotion, whereas a comparative employee was promoted even though he lacked the required operational experience. (Document 24 - September 28, 2015).
In the above September 2015 ruling, the Court granted the Agency's decision to dismiss both of Complainant's disparate impact claims and claim 2, with leave to amend his civil action complaint to address deficiencies. The Court found that Complainant did not administratively exhaust his disparate impact claims because he alleged disparate treatment in a prior EEO administrative complaint, and the disparate impact claims could not have reasonably been expected to grow out of facts alleged therein. It found that claim 2 failed to state a claim because Complainant did not allege facts indicating he had a disability or was qualified within the meaning of the Rehabilitation Act. The Court ruled that Complainant may proceed on claim 4, since the Agency did not challenge this claim.
Thereafter, Complainant filed his second amended civil action complaint. On December 8, 2015, the Court explicitly dismissed Complainant's above disparate impact claims without prejudice on the ground that he had not exhausted his administrative remedies, for the reason recounted above. It ruled that these claims may be renewed upon administrative exhaustion thereof. The Court granted the Agency's unopposed motion for partial dismissal, and found Complainant may proceed on claim 4, which the Agency did not challenge. (Court Document 28).
Meanwhile, on October 4, 2015, Complainant filed a formal administrative EEO complaint, which the Agency defined as alleging that he was discriminated against based on disability when since 1998, he has held a position which does not allow him the retirement benefits, pay2 and potential career progression as the position of Air Traffic Control Specialist, which he held prior to the onset of his disability.
Actually, Complainant was employed as an FAA air traffic controller when he suffered a hypertensive stroke in 1997, was later medically disqualified from working in that position, and went on disability retirement in 1998. In April 2002, he returned to the FAA as a Staff Support Specialist. (Court Document 24). In his administrative EEO complaint, Complainant reiterated in part that "permanent" Staff Support Specialists accrued retirement benefits at a lower annual rate than "temporary" Staff Support Specialists.
In his contact with the EEO office, Complainant wrote, in reference to his civil action, that the according to the Assistant United States Attorney, he was not clear enough in his prior (administrative EEO complaint) on his disparate impact claims arising from the differing retirement accrual, pay, and inferior category between permanent and temporary staff support specialists. In September 2015, Complainant wrote the Court that to hedge against the possibility of dismissal, he submitted an additional EEO complaint specifying disparate impact and attached his written EEO contact regarding the administrative EEO complaint before us. (Court Document 18, � 23, Exhibit 2).
Citing 29 C.F.R. � 1614.107(a)(3), the Agency dismissed the complaint on the grounds that it was the basis of a pending civil action in a United States District Court in which the Complainant was a party.
On appeal, Complainant writes that the Agency argues that his disparate impact claims were additional claims which were not administratively exhausted.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(3) provides that an Agency shall dismiss a complaint that is the bases of a civil action decided by a United States District Court in which the Complainant was a party. However, where the Court dismisses a civil action without prejudice for failure to exhaust administrative remedies, the administrative complaint is not properly subject to dismissal on the grounds that a civil action was filed. Rudolph v. Department of Veteran Affairs, EEOC Appeal No. 01975221 (April 16, 1998).
Here, the United States District Court explicitly dismissed Complainant's disparate impact claims without prejudice for failure to exhaust administrative remedies. Accordingly, the Agency's dismissal of Complainant's complaint is REVERSED.
ORDER
The Agency is ordered to process the remanded claims (disparate impact, not disparate treatment) in accordance with 29 C.F.R. � 1614.108.3 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 (M0815)
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, 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 (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
April 6, 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.
2 Like in his civil action complaint, as amended, Complainant raised pay. The Court did not construe pay to be an independent claim. In his administrative complaint, outside the context of lower accrual of retirement benefits and potential career progression, Complainant did not explain his reference to pay.
3 It does not appear that Complainant is attempting to administratively raise his disparate treatment claims. But to the extent that he is, at this point they are dismissed under 29 C.F.R. � 1614.107(a)(3).
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