0520100542
01-04-2011
Request No. 0520100542
Sharon Graham, et al
Class Agents,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Request No. 0520100542
Appeal Nos. 0120081469, 0120081470
Hearing No. 210-2004-00139X
Agency No. 95-0012
DENIAL
The Agency timely requested reconsideration of the decision in Doreen
Amft, Sharon Graham, et al v. Department of Transportation, EEOC Appeal
Nos. 0120081469, 0120081470 (November 6, 2009). EEOC Regulations
provide that the Commission may, in its discretion, grant a request
to reconsider any previous Commission decision 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(b).
ISSUE PRESENTED
The issue presented in this case is whether the Class Agents correctly
showed that their EEO Counselor contact was timely.
BACKGROUND
In the appellate decision, the Class Agents filed a formal class
complaint, dated August 5, 1994, alleging that the Agency had engaged
in discrimination on the basis of sex against the class of women in
clerical and administrative support positions that were excluded from the
Pay Demonstration Project1 beginning in 1989. The procedural history
regarding this case shows that the complaint was dismissed on three
different occasions for untimely EEO Counselor contact. On January 7,
2008, the time of the third dismissal, the EEOC Administrative Judge
(AJ) assigned to the case, dismissed the complaint for untimely EEO
Counselor Contact. The AJ found that pursuant to Ledbetter v. Goodyear
Tire & Rubber Co., Inc., 127 S.Ct. 2162 (2007), the Class Agents'
June 1994 contact with an EEO Counselor to raise their claim of
gender discrimination was more than five years too late. The AJ also
found that the complaint was not timely under Bazemore v. Friday, 478
U.S. 385 (1986), because the Class Agents had not identified a facially
discriminatory pay structure in this case. Finally, the AJ found that
the passage of the Grandfather Provision, on May 27, 1994, did not make
the complaint timely because the law was an act of Congress, not an
act of the Agency, and this case was about the implementation of the
Pay Project in March 1989, and how such project excluded the positions
of the Class Agents. The Agency issued a final decision fully adopting
the AJ's decision to dismiss the complaint. The Class Agents appealed
to the Commission.
The Commission found that the AJ's decision to apply the Supreme Court's
decision in Ledbetter to the facts of this case was proper during the
relevant time period; however, the recent passage of the Lilly Ledbetter
Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 ("the Act"), required
the Commission to reevaluate whether the Class Agents initiated timely EEO
Counselor contact. The Commission found that pursuant to the Act, the
Class Agents had contacted an EEO Counselor within 45-days of receiving
a pay check, so therefore the Class Agents had timely contacted an EEO
Counselor.2 The Commission vacated the AJ's dismissal and remanded
the case for further processing.
REQUEST FOR RECONSIDERATION
In the Agency's request for reconsideration, the Agency maintains that
the Commission erred when it found the Class Agents' claims timely under
the Act. The Agency asserts that the Commission did not consider a very
recent Supreme Court decision, AT & T v. Hulteen, 129 S.Ct. 1962 (2009).
Specifically, the Agency noted that in Hulteen, the Supreme Court held
that the Act did not save otherwise untimely claims in which the alleged
conduct fell within a statutory immunity. The Agency maintains that
Congress specifically authorized, ratified and approved the compensation
program challenged by the Class Agents. Therefore, the Agency argues that
because of these immunities, the Act simply does not apply under Hulteen.
Further, the Agency asserts that the Commission's decision could have a
substantial impact on the policies or practices of the Agency. The Agency
asserts that the Class Agents did not seek counseling to commence this
action until after Congress explicitly ordered the Agency to make the very
payments that Class Agents claim are discriminatory, and they waited five
years after the commencement of the program before seeking counseling
on the matter. The Agency contends that a full twenty years has passed
since the program began. Therefore, by allowing the Class Agents to
bring such a late challenge to a payment plan that was specifically
authorized, ratified, and deemed necessary by the United States Congress
will create substantial confusion within the Agency and greatly hinder
the implementation of its programs and initiatives. Therefore, the
Agency requests that the Commission vacate the decision.
In response, the Class Agents argue that the Agency's brief should not
be considered because it is untimely. Moreover, the Class Agents assert
that the Agency's request raises new arguments that could have been
raised earlier in the process. Specifically, the Class Agents maintain
that the Agency improperly argues for the first time in its request
for reconsideration: (1) the Grandfather Provision of FAA Demonstration
Project; (2) Laches; and (3) the reasonable suspicion standard.
The Agency responds that the Class Agents' arguments are without merit.
And, request that its arguments be accepted.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. The Commission finds that the Agency failed to show that the
appellate decision involved a clearly erroneous interpretation of material
fact or law, or that the appellate decision will have a substantial impact
on the policies, practices, or operations of the agency. In the instant
matter, the Commission finds that the Agency presented arguments with
regard to the issue of EEO Counselor timeliness that were previously
addressed in the appellate decision. We also note that the Agency
presented new arguments which were not addressed on appeal, such as the
applicability of the Hulteen decision on this matter. The Commission
reminds the Agency that the Commission's scope of review on a request for
reconsideration is narrow and is not an opportunity for a second appeal
to the Commission. See Equal Employment Opportunity Management Directive
110 for 29 C.F. R. Part 1614 (Nov. 9, 1999), Chapter 9-17. See Lopez
v. Dept. of the Air Force, EEOC Request No. 05890749 (Sept. 28, 1989);
Regensberg v. U.S. Postal Serv., EEOC Request No. 05900850 (Sept. 7,
1990). Therefore, we decline to address the arguments presented.
Accordingly, the decision in EEOC Appeal No. 0120081469 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request. The Agency
shall comply with the Order as set forth below.
ORDER
(1) Notify potential class members of the accepted class claim within
fifteen (15) calendar days of the date this decision becomes final,
in accordance with 29 C.F.R. � 1614.204(e).
(2) Forward a copy of the class complaint file and a copy of the notice
to the hearings Unit of the Chicago District Office within thirty (30)
calendar days of the date this decision becomes final. The Agency must
request that an AJ be appointed to hear the certified class claim,
including any discovery that may be warranted, in accordance with 29
C.F.R. � 1614.204(f).
(3) Send a copy of all notices and letters ordered in provisions (1) and
(2) of this Order, as provided in the statement entitled "Implementation
of the Commission's Decision."
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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees
to the Agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
______1/4/11____________
Date
1 This project was initiated in order for the Agency to test the
effectiveness of recruitment and retention of personnel through pay
incentives.
2 Since the Commission found that the class agents initiated timely
EEO Counselor contact, the Commission did not address whether the class
agents established that the Pay Demonstration Project was a facially
discriminatory pay structure, whether the class agents initiated timely
EEO Counselor contact under the standards set forth in Bazemore, or
whether the class agents initiated timely EEO Counselor contact because
of the passage of the Grandfather provision in 1994.
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0520100182
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520100542