[Redacted], Nick N, 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.Download PDFEqual Employment Opportunity CommissionApr 28, 2021Appeal No. 2019002467 (E.E.O.C. Apr. 28, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nick N,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Request No. 2020002700 Appeal No. 2019002467 Agency No. 2017-27461-FAA-06 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019002467 (January 28, 2020). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). For the following reasons, the Commission DENIES the Agency’s request for reconsideration. However, the Commission MODIFIES the underlying appellate decision on its own motion. In the underlying complaint, Complainant alleged that the Agency subjected him to discrimination on the bases of disability (physical) and age (over 40) regarding his non-selection claim (claim 1). Following an investigation into claim 1, the Agency issued Complainant a report of investigation, and Complainant timely filed a request for a hearing before an EEOC Administrative Judge (AJ). 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. 2020002700 2 While the complaint was pending before the AJ, Complainant sent an email to an EEO Counselor, requesting the addition of Claim 2. See Complaint File at 764. In response, the EEO Counselor accepted the amendment, and added Claim 2 to the formal complaint. Id. at 763. Before the assigned AJ undertook development of Claim 2, Complainant submitted a Notice of Withdrawal on September 17, 2018, requesting the withdrawal of his hearing request and the issuance of a final agency decision. Id. at 833. The AJ granted the request in full on October 22, 2018. The FAD only addressed claim 1. On appeal, the Commission affirmed the FAD as to claim 1, and remanded claim 2 for further processing. Specifically, the Commission ordered the Agency to “issue a final decision within thirty (30) days of the date this Decision issued with respect to the merits of Complainant’s disparate treatment claim addressed in Claim 2 of Complainant’s complaint.” On February 27, 2020, the Agency timely filed a request for reconsideration of the Commission’s order to issue a FAD within 30 days of the date when the appellate decision was issued. In its request for reconsideration, the Agency argues that it currently lacks the necessary information upon which to adequately determine the merits of Claim 2. In this regard, the Agency emphasizes that no investigation has been conducted into Claim 2 because Complainant added Claim 2 after the EEO investigation into Claim 1 had already been completed. The Agency contends that “[w]ithout an investigation of facts related to Claim 2, the Agency would not be in a position to issue a FAD.” After reviewing the previous decision and the entire record,2 the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. There is no further right of administrative appeal on the decision of the Commission on this request. However, the Commission shall, on its own motion, modify the Order in EEOC Appeal No. 2019002467, to afford the Agency the opportunity to conduct a supplemental investigation in order to create an impartial and complete factual record upon which to adjudicate Claim 2. See 29 C.F.R. § 1614.108(b) and EEOC Management Directive 110, Ch. 6 § I. ORDER 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 Claim 2 within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file within one twenty (120) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. The Agency shall issue a final decision on Claim 2 within thirty (30) days of the completion of the investigation. 2 Neither the Agency nor Complainant challenged the Commission’s finding of discrimination on Claim 1. As such, we have limited our review to the propriety of the Commission’s Order in EEOC Appeal No. 2019002467. 2020002700 3 As provided in the statement entitled “Implementation of the Commission’s Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file, and 3) a copy of the final decision. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 2020002700 4 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 28, 2021 Date Copy with citationCopy as parenthetical citation