[Redacted], Murray H., 1 Class Agent,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2021000956 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Murray H.,1 Class Agent, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2021000956 Hearing No. 450-2007-00109X Agency No. 5-04-5026 ORDER OF DISMISSAL On November 23, 2020, the Agency issued a final order partially adopting, and partially rejecting, an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge’s Class Action Interim Hearing Decision, dated September 24, 2020, regarding Class Agent’s complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Simultaneously, the Agency filed the instant appeal and Class Agent timely filed a cross appeal. For the following reasons, the Commission VACATES the Agency’s final order and DISMISSES the parties’ appeals. ISSUE The issue is whether the Agency properly issued a final order, following the Administrative Judge’s Class Action Interim Hearing Decision. 1 This case has been randomly assigned a pseudonym which will replace Class Agent’s name when the decision is published to non-parties and the Commission’s website. 2021000956 2 BACKGROUND From 1970 to 1981, Class Agent was employed by the Agency as an Air Traffic Control Specialist (ATCS) at the Agency’s Air Route Traffic Control Center in Houston, Texas. Class Agent was terminated by the Agency after he participated in a strike of the Professional Air Traffic Controller Organization (PATCO). A ban against the rehiring of striking PATCO members was in place from 1981 until 1993. Following the lifting of the ban, the Agency solicited applications for the reinstatement and transfer of eligible applicants who were separated as a result of the PATCO strike in 1981. Class Agent submitted his application in September 1993, and he was notified that he was eligible for all positions for which he applied. In September 2003, Class Agent learned that new ATCSs were hired, and he believed that these new hires were younger and less qualified than he was. On February 6, 2004, Class Agent filed an equal employment opportunity (EEO) complaint alleging age discrimination, and on March 22, 2004, Class Agent amended his complaint to include a class action claim. The Agency forwarded Class Agent’s class complaint to the EEOC, and on February 22, 2006, an EEOC Administrative Judge (AJ) issued a decision certifying a nationwide class complaint alleging age discrimination. The AJ defined the class complaint as: Whether the agency discriminated against PATCO inventory applicants on the basis of age when they were not selected for Air Traffic Control Specialist vacancies on September 16, 2003, and thereafter. This complaint encompasses the following allegedly discriminatory practices and/or policies for the hiring of Air Traffic Control Specialists: (A) The use of quotas in making selections; (B) Not comparing candidates from one pool with those in other applicant pools; (C) The maintenance of separate “applicant pools”; and (D) Beginning in approximately 1999, not making any further selections from the PATCO inventory. The AJ reserved class membership to: Those PATCO Inventory applicants who were not selected for Terminal and Enroute Air Traffic Control Specialist vacancies (at their preferred locations) beginning on September 16, 2003, and thereafter. “Preferred locations” refers to the locations identified by the PATCO inventory applicant as ones for which they would like to be considered for ATCS employment. Both parties appealed the AJ’s decision. On October 26, 2006, the Commission concluded that the AJ had correctly defined the class complaint as follows: Whether the Agency discriminated against the PATCO inventory applicants on the basis of age when they were not selected for Air Traffic Control Specialist vacancies on September 16, 2003, and thereafter. McCollum, et al. v. Dep’t of Transportation, EEOC Appeal No. 07A60055 (Oct. 26, 2006); request for reconsideration denied, EEOC Request No. 0520070177 (Jan. 5, 2007). 2021000956 3 On August 14, 2015, the Agency filed a motion to decertify the class. On September 15, 2017, the AJ issued a Decision Modifying Class Certification and modified the class claim into two time periods as follows: 1. From September 2003 through September 2006, did the Agency discriminate against PATCO inventory applicants on the basis of age when they were not selected for Air Traffic Control Specialist vacancies within the Southwest Region or within the Central Service Area (Central Enroute & Oceanic Service Area and/or the Central Terminal Area)? 2. From October 2006 through approximately October 2012, did the Agency discriminate against PATCO inventory applicants on the basis of age when they were not selected for Air Traffic Control Specialist vacancies nationally or within the Western Service Area (Western Enroute & Oceanic Service Area and/or the Western Terminal Service Area), the Central Service Area, (Central Enroute & Oceanic Service Area and/or the Central Terminal Service Area), and/or Eastern Service Area (Eastern Enroute & Oceanic Service Area and/or the Eastern Terminal Service Area)? On October 25, 2017, the Agency issued a final order opposing the class modification, and it appealed the AJ’s decision. The Commission dismissed the Agency’s appeal because it was not ripe for adjudication. Specifically, the Commission found that regulations do not provide for interlocutory appeals from an administrative judge’s rulings on motions during the hearing process, and such appeals must be dismissed as premature. Murray H., et al. v. Dep’t of Transportation, EEOC Appeal No. 0720180008 (August 3, 2018). The AJ conducted a hearing on October 30-November 17, 2017; November 27-December 1, 2017; November 15-16, and 19-20, 2018; and March 19, 2019. On September 24, 2020, the AJ issued a Class Action Interim Hearing Decision (Interim Decision). The AJ found that Class Agent: (1) showed that the class members (Western Service Area; Central Service Area; and Eastern Service Area) were subjected to a pattern or practice of differential treatment on the basis of age in non- selections from October 2006 through approximately October 2012; (2) failed to show that the class members (Southwest and/or Central Service Area) were subjected to a pattern or practice of differential treatment on the basis of age in non-selections from September 2003 through September 2006; (3) failed to present sufficient statistical evidence to support a finding of disparate impact for any part of the covered class period; and (4) failed to present sufficient evidence in his individual case. The AJ noted that, pursuant to 29 C.F.R. § 1614.204(i), she must “transmit to the agency a report of findings and recommendations on the complaint, including a recommended decision, systemic relief for the class and any individual relief, where appropriate, with regard to the personnel action or matter that gave rise to the complaint.” Accordingly, the AJ ordered the class to file a brief within forty-five days, which clearly specified what systemic relief was appropriate in this case; and the Agency’s opposition brief to the class’ brief may be filed no later than forty-five days from the class’ brief. 2021000956 4 The AJ further noted that the 60-day deadline for the Agency to file a final decision under 29 C.F.R. § 1614.204(j) will not commence until she issues a report of findings and recommendations and determines the appropriate relief. On November 23, 2020, the Agency issued a final order and notified the Commission of its appeal of the AJ’s Interim Decision. The Agency adopted the AJ’s ruling on Class Agent’s individual claim, the class disparate impact claims, and all claims for the period before fiscal year 2007. The Agency rejected the AJ’s decision on the merits of the claim that class members (Western Service Area, Central Service Area, and Eastern Service Area) were subjected to a pattern or practice of differential treatment on the basis of age for non-selections from October 2006 to October 2012. On December 14, 2020, the Agency submitted its appeal brief, and argued that the AJ erred in finding a pattern or practice of discrimination and by not decertifying the class. On December 17, 2020, the AJ denied the Agency’s Motion to Stay and Extending Time for Agency’s Response. The AJ determined that the Agency’s appeal of the Interim Decision was premature because there was a pending determination on systemic relief, following an opportunity for the parties to brief the issue. On December 23, 2020, Class Agent filed an opposition to the Agency’s appeal, arguing that it was premature. Class Agent stated that if the Commission determines that the Agency’s appeal is not premature, to consider his appeal of the Agency’s November 23, 2020 final order and the Agency’s October 25, 2017 final action on the AJ’s Decision Modifying Class Certification. On December 24, 2020, the Agency responded to Class Agent’s opposition to its appeal. On December 28, 2020, Class Agent filed an Expedited Motion to Dismiss the Agency’s Appeal. Class Agent argued that the Agency’s appeal is premature because the AJ had not yet issued a decision under 29 C.F.R. § 1614.204(i). On January 7, 2021, the Agency opposed Class Agent’s Expedited Motion to Dismiss the Agency’s Appeal. On January 8, 2021, the Agency filed a Motion to Stay the Class Action Proceedings Before the Administrative Judge Pending Appeal of the Administrative Judge’s Post-Hearing Decision. Class Agent submitted his opposition brief on January 27, 2021,2 in response to the Agency’s arguments regarding the merits of the AJ’s finding of age discrimination and class certification. CONTENTIONS ON APPEAL Agency’s Contentions In its final order, the Agency states that it is appealing the AJ’s Interim Decision pursuant to 29 C.F.R. § 1614.204(j)(1) and Garcia et al. v. Department of Justice, EEOC Appeal No. 0120122033 (June 7, 2013), in which the Commission held that an “interim” decision was “final” because it 2 Class Agent requested an extension to file his opposition brief and the Commission granted an extension through January 27, 2021. 2021000956 5 included a ruling in favor of a class, and the individual class agent, on disparate impact and pattern or practice grounds. The Agency states that, similarly, in this case, the AJ’s Interim Decision included a ruling on the merits of the class’ pattern or practice intentional discrimination claim; the class’ disparate impact claim; and the class agent’s individual claim, and therefore, is a “final decision on the merits.” In response to Class Agent’s Expedited Motion to Dismiss the Agency’s Appeal, the Agency asserts that it properly and timely appealed within 60 days of the Interim Decision, which was “undeniably a decision on the merits of a class complaint,” because the AJ ruled on the merits of all claims. The Agency argues that Commission precedent in Garcia forecloses Class Agent’s argument that the appeal is premature because the Commission specifically held that an “interim” decision was “final” where the administrative judge issued the decision after a merits hearing and included an order on the merits, even though the administrative judge labeled the decision “interim” and directed the parties to file briefs on systemic and other remedies. The Agency asserts that similarly in this case, the AJ issued the decision after a merits hearing, included an order on the merits of all claims, labeled it “interim,” and directed the parties to file briefs on systemic remedies, and therefore, the decision is final. In addition, the Agency argues that the Commission previously held, in Murray H. et al., supra, that the Agency may directly appeal to the Commission when an AJ “has issued a decision regarding class certification, the merits of a class complaint, or the relief awarded on a class complaint.” The Agency asserts that the Commission’s use of the word “or” clearly indicates that a ruling on relief on a class complaint is not required for a final decision. The Agency argues that it met all of the prerequisites for appeals in 29 C.F.R. § 1614.401(c) because the AJ clearly “dismissed” part of the class complaint (namely all disparate impact claims and the 2003-2006 pattern or practice claim) and just as plainly “accepted” the pattern or practice claim for 2007-2012, and the AJ issued a “final decision” dismissing Class Agent’s claim for individual relief. The Agency also argues that the Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), (August 5, 2015) states that an administrative judge’s decision on the merits of a class complaint is a final decision, rather than a recommended decision, which an agency can implement or appeal, and it does not condition the finality or appealability of such a decision on whether remedies have been awarded. The Agency also argues that practical considerations support the immediate appealability of the Interim Decision, and that efficiency considerations support addressing the AJ’s merits findings on appeal before determining what, if any, remedies are to be awarded in this case. The Agency asserts that it properly appealed the Interim Decision, and requests that the Commission deny Class Agent’s motion. 2021000956 6 Class Agent’s Contentions Class Agent argues that the Agency’s final order and appeal are premature due to the non-final nature of the AJ’s Interim Decision, as noted in the AJ’s December 17, 2020 denial of the Agency’s Motion to Stay and Extending Time for Agency’s Response. Class Agent states that the clock for the Agency to issue a final order and appeal does not begin until after the AJ transmits “a decision on the complaint, including findings, systemic relief for the class,” and because the AJ has not yet issued a decision under 29 C.F.R. § 1614.204(i), the 60-day time-frame under 29 C.F.R. § 1614.204(j) for the Agency to take final action has not begun, rendering its November 23, 2020 final action and instant appeal premature. Class Agent also asserts that the AJ correctly distinguished Garcia because the characterization of the interim class decision in that case as a “final decision on the merits of the Agency’s liability,” did not transform such decision into a “final decision” triggering the 60-day period for issuance of an agency’s final order under 29 C.F.R. § 1614(j). Class Agent also argues that in Complainant v. United States Postal Service, EEOC Appeal No. 0720130038 (February 6, 2015), the Commission stated that “the regulations only provide for direct appeals to the Commission when an AJ has issued a decision regarding class certification, the merits of a class complaint, or the relief awarded on a class complaint,” which summarized that the regulations allow for a direct appeal in class complaints, but it did not permit a separate right of appeal not authorized by the existing regulations, nor did it provide a time-frame for which a direct appeal may be initiated. Class Agent requests that the Commission grant his expedited motion to dismiss the Agency’s final action and appeal. ANALYSIS AND FINDINGS EEOC regulations state that “the administrative judge shall transmit to the agency and class agent a decision on the complaint, including findings, systemic relief for the class and any individual relief, where appropriate, with regard to the personnel action or matter that gave rise to the complaint.” 29 C.F.R. § 1614.204(i). We note that an administrative judge’s decision on a class complaint should address systemic relief, if the administrative judge’s decision includes a finding of discrimination, and in this particular case, we find that the AJ’s Interim Decision did not meet the requirements of 29 C.F.R. § 1614.204(i) because it did not include the systemic relief. Rather, the AJ ordered the parties to submit briefs regarding systemic relief and provided their submission deadlines in her Interim Decision. The AJ also specified that she would subsequently issue a report of findings and recommendations, which would then trigger the Agency’s obligation to issue a final order under 29 C.F.R. § 1614.204(j). As such, we find that the Agency’s November 23, 2020 final order on the AJ’s Interim Decision is premature. The Agency argued that the MD-110 does not state that a merits decision is not a “final decision” if the administrative judge has yet to decide on the systemic remedies to be awarded as damages. However, the MD-110 states that “[i]f there is a finding of discrimination, the decision shall include systemic relief for the class, and any individual relief, where appropriate, with regard to the personnel action or policy that gave rise to the complaint.” MD-110 at Chap. 8 § X. 2021000956 7 While the MD-110 does not specify when an administrative judge’s decision on a class complaint is considered “final,” it does indicate that an administrative judge’s merits decision shall include systemic relief, if there is a finding of discrimination, which is consistent with 29 C.F.R. § 1614.204(i). The Agency also argued that its final order is appropriate based on Garcia, supra. In Garcia, the administrative judge issued an “Interim Decision” finding liability against the agency on April 27, 2011, and she ordered the class to file a brief that specified the systemic and individual relief. On October 7, 2011, the agency filed a Motion for Class Decertification; and on January 12, 2012, the administrative judge issued a Report of Findings and Recommendations, and an Order denying the agency’s Motion for Class Decertification. The agency issued its final order on March 13, 2012, which the class agent appealed. The Commission affirmed the administrative judge’s denial of the agency’s Motion for Class Decertification because the Supreme Court issued its decision almost two months after the administrative judge’s decision on the merits, and the agency did not submit its motion until October 7, 2011. The Commission found that “the AJ reached her final decision on the merits of the Agency’s liability on April 27, 2011. It was clear from the decision that the findings on the merits were final, and the only remaining issue was relief.” The Agency argued that the facts are similar here, and that the AJ’s Interim Decision was a “final” decision, and therefore, ripe for appeal. However, we find that, based on the unique facts of this case, the Agency’s reliance on Garcia is misplaced because the Commission found that the administrative judge’s interim decision was “final” with respect to the agency’s request to decertify the class when we affirmed the administrative judge’s denial of the agency’s Motion for Class Decertification. Here, the Agency is asserting that the AJ’s Interim Decision is final to challenge the AJ’s merits decision finding age discrimination when class members (Western Service Area, Central Service Area, and Eastern Service Area) were subjected to a pattern or practice of differential treatment on the basis of age for non-selections from October 2006 to October 2012. While the Agency also argues in its appeal brief that the class should be decertified, we note that its November 23, 2020 final order did not address the issue of class certification. To the extent that the Agency argues that the Commission found that any “interim” decision is “final” if an administrative judge addresses the merits of the claims of a class complaint, we find that this interpretation is not supported by Garcia. The Agency also argued that the Commission previously held, in Murray H. et al., supra, that parties may directly appeal to the Commission when an administrative judge “has issued a decision regarding class certification, the merits of a class complaint, or the relief awarded on a class complaint.” The Agency asserted that the Commission’s use of the word “or” clearly indicates that a ruling on relief on a class complaint is not required for a final decision. However, we note that the Agency overlooked the start of the sentence, and that the complete sentence stated that, “[i]n the context of class complaints, the ‘regulations only provide for direct appeals to the Commission when an AJ has issued a decision regarding class certification, the merits of a class complaint, or the relief awarded on a class complaint,’” quoting Complainant, supra. [Emphasis added]. 2021000956 8 As discussed above, we find that EEOC regulation states that an administrative judge’s decision on a class complaint should address systemic relief, if there is a finding of discrimination, which was not the case for the AJ’s Interim Decision. Accordingly, we find that the Agency’s November 23, 2020 final order was premature, and we VACATE the Agency’s final order and DISMISS the parties’ appeals. Regarding the Agency’s arguments that practical and efficiency considerations support the immediate appealability of the Interim Decision, we find that the Agency only offered its opinion and did not provide any support for its assertions. In addition, based on our finding that the Agency’s final order was premature, we find that Class Agent’s December 28, 2020 Expedited Motion to Dismiss the Agency’s Appeal and the Agency’s January 8, 2021 Motion to Stay the Class Action Proceedings Before the Administrative Judge Pending Appeal of the Administrative Judge’s Post-Hearing Decision are moot. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency’s November 23, 2020 final order and DISMISS both parties’ appeals. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Class Agent or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Class Agent should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2021000956 9 Alternatively, Class Agent can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a Class Agent’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Class Agent files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). CLASS AGENT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, 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. 2021000956 10 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Class Agent’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 February 9, 2021 Date