Patrick J. Ross, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionDec 12, 2000
01995940 (E.E.O.C. Dec. 12, 2000)

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