0520100182
11-29-2010
Request No. 0520100182
Doreen Amft, et al
Class Agents,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Request No. 0520100182
Appeal No. 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 No. 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
__11/29/10________________
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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0520100182