01995940
12-12-2000
Patrick J. Ross, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Patrick J. Ross v. Department of Transportation
01995940
December 12, 2000
.
Patrick J. Ross,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01995940
Agency No. 4994063
DECISION
Complainant filed an appeal with this Commission from an agency decision
concerning his complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. �621 et seq. The agency decision was issued on July 7, 1999.
The appeal was postmarked July 20, 1999. Accordingly, the appeal is
timely, see 29 C.F.R. �1614.402(a), and is accepted in accordance with
29 C.F.R. �1614.405.
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
the complaint on the grounds of failure to state a claim.
BACKGROUND
Complainant initiated contact with an EEO Counselor on March 2, 1999.
In a formal EEO complaint dated April 22, 1999, complainant claimed
that he was discriminated against on the basis of his age (47) when he
was not rehired as an Air Traffic Control Specialist from the PATCO
register for the Minneapolis Air Route Traffic Control Center during
Fiscal Year 1998.
In its decision, the agency dismissed the complaint on the grounds
that it failed to state a claim. The agency determined that although
complainant applied for re-employment under the recruitment notice for
former PATCO employees, complainant did not list the Minneapolis Air
Route Traffic Control Center as his first choice when the 1998 referral
list was issued.
On appeal, complainant maintains that in the Spring of 1998, the agency's
Regional Office informed him that the Minneapolis facility was overstaffed
and would not be hiring. According to complainant, he was told that if
he wanted to work as a controller again, he should change his preference
to the Chicago facility because this was the only facility that would
be hiring. Complainant claims that he changed his preference back to
the Minneapolis list after he was told by another air controller that
it was unlikely that a candidate would be selected for a facility at
which he had not previously worked.
In response, the agency asserts that in January 1998, the Air Traffic
Division of the Great Lakes Region requested a list of eligible PATCO
applicants for the various air traffic control facilities in that
region, including the Air Route Traffic Control Centers in Chicago
and Minneapolis. The agency argues that since complainant was on the
list of Chicago applicants, but not the list of Minneapolis applicants,
he can not be considered aggrieved. The agency states that selections
for the Minneapolis facility were completed by the end of February 1998.
The agency argues that complainant was not considered for the Minneapolis
facility because he did not change his primary choice back to Minneapolis
until May 12, 1998. With respect to complainant's position on appeal, the
agency asserts that complainant is raising for the first time his claim
that his decision to change his first preference to Chicago was based upon
information he received from the agency's Regional Office. The agency
notes that complainant did not specify when this conversation occurred
or who provided the advice about the Minneapolis hiring situation.
In support of its position, the agency submits an affidavit from the
official who was in charge of the processing of the PATCO applications
for the Great Lakes Region. This official states that she did not
advise complainant that the Minneapolis facility would not be hiring.
She also maintains that she did not advise complainant that if he wanted
to work as a controller again, he should change his preference to the
Chicago Center. She further states that she did not inform complainant
that the Chicago Center was the only facility that would be hiring.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
In the present case, complainant claimed that he was discriminated against
when he was not rehired as an Air Traffic Control Specialist from the
PATCO register for the Minneapolis Air Route Traffic Control Center during
Fiscal Year 1998. A determination as to the agency's motivation in not
rehiring complainant goes to the merits of complainant's claim. We find
that complainant has stated a claim against the agency. Accordingly,
the agency's decision to dismiss the complaint on the grounds of failure
to state a claim was improper and is REVERSED. This complaint is hereby
REMANDED for further processing in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 (K0900)
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 19848,
Washington, D.C. 20036. 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)(Supp. V 1993). 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 (M0900)
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), 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 19848,
Washington, D.C. 20036. 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
(R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 12, 2000
__________________
Date