05990064_05990105
04-03-2000
Susan Daly, Patricia A. McCance, Theresa Kirk, 05990106 Kathleen F. Wecht, 05990107, 05990105 Susan Manaseri, 05990109, 05990108 Lorraine Patigailo, 01963470 Complainants v. Nos. 1-96-042A, 1-96-042 Rodney Slater, 1-96-042D Secretary, Department of Transportation, Agency.
Susan Daly, )
Patricia A. McCance, )
Theresa Kirk, ) Request Nos. 05990064,
05990106
Kathleen F. Wecht, )
05990107, 05990105
Susan Manaseri, )
05990109, 05990108
Lorraine Patigailo, ) Appeal Nos. 01963551,
01963470
Complainants ) 01963496, 01963444
) 01963631, 01963433
v. ) Agency
Nos. 1-96-042A, 1-96-042
Rodney Slater, ) 1-96-042C,
1-96-042D
Secretary, ) 1-96-042E, 1-96-042F
Department of Transportation, )
Agency. )
)
GRANTING OF REQUEST FOR RECONSIDERATION
On October 19, 1998, the Department of Transportation (the agency)
initiated a request to the Equal Employment Opportunity Commission (EEOC)
to reconsider the decisions in Susan Daly v. Department of Transportation,
EEOC Appeal No. 01963551 (September 17, 1998); Patricia A. McCance
v. Department of Transportation, EEOC Appeal No. 01963470 (September
17, 1998); Theresa Kirk v. Department of Transportation, EEOC Appeal
No. 01963496 (September 17, 1998); Kathleen F. Wecht v. Department of
Transportation, EEOC Appeal No. 01963444 (September 17, 1998); Susan
Manaseri v. Department of Transportation, EEOC Appeal No. 01963631
(September 17, 1998); Lorraine Patigailo v. Department of Transportation,
EEOC Appeal No. 01963433 (September 17, 1998). The complaints are hereby
consolidated pursuant to EEOC Regulation 29 C.F.R. � 1614.606.<1>
In 64 Fed.Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.106(d), the regulations provide that the
Commissioners may, in their discretion, reconsider any previous Commission
decision where the party demonstrates that: (1) the previous decision
involved clearly erroneous interpretation of material fact or law; or (2)
the decision will have a substantial impact on the policies, practices
or operation of the agency. 29 C.F.R. � 1614.405(b). The agency's
request is granted.
Pursuant to the provisions of 5 U.S.C. � 4703(a), the Office of Personnel
Management (OPM) was authorized by the U.S. Congress to conduct and
evaluate demonstration projects to experiment with new and different
personnel management concepts. In 1988, the agency approached the
OPM for authority to participate in a Pay Demonstration Project (PDP)
pursuant to 5 U.S.C. � 4703. The purpose of the proposed project was
to determine whether a financial incentive would allow the agency to
retain and recruit adequate numbers of qualified safety-critical staff
in its understaffed facilities. The PDP was approved for several agency
facilities and ran from June 1989 until June 1994.
After the PDP began in 1989, the female complainants herein and several
other women filed EEO complaints with the agency alleging that they were
discriminated against because clerical and administrative positions,
held mostly by women, were not included in the PDP. Some of the
complaints, including those of the complainants herein, were settled and
the complainants received amounts equal to 50 percent of the amounts to
which they would have been entitled had they participated in the PDP.
In the remaining complaints, a hearing was requested and held. The EEOC
administrative judge (AJ) issued a recommended decision finding no
discrimination. The complainants appealed this decision to the EEOC and
on December 12, 1996, the Commission issued its decision which found:
(1) that the Commission had jurisdiction to review the complainants'
claim because the Commission was not precluded from reviewing the
matter and determining whether the PDP was designed and implemented in a
nondiscriminatory manner; and (2) that the agency had not discriminated
on the basis of disparate treatment or disparate impact when it designed
and implemented the PDP in the manner that it did. See Louise E. Stiles
v. Department of Transportation, EEOC Appeal No. 01945782 (December
12, 1996).
In 1994, when the PDP was about to expire, Congress included in the
Airport Improvement Program Temporary Extension Act of 1994, Pub. Public
Law 103-260, section 401, a provision entitled �Grandfather Provision
for FAA Demonstration Project� (the Grandfather Provision) in which
Congress specifically authorized payment retention allowances to those
employees covered by the PDP. The six complainants herein and several
other female employees again filed EEO complaints alleging that the
Grandfather Provision also discriminated against them on the basis
of sex. The previous decision concluded that the complainants were
alleging that the action complained of, the Grandfather Provision, had
a disparate impact on the wages of female employees and as such were
not simply generalized allegations as the agency contended. The previous
decision also rejected the agency's argument that the allegation had been
previously raised in the prior EEO complaints involving the original PDP
reasoning that the instant allegations concerned the Grandfather Provision
commencing in June 1994 and not the original PDP. In its request for
reconsideration, the agency argues that the complainants fail to state
a claim because the agency and the Commission are without jurisdiction
to review a Congressional Act or to afford relief to complainants in
the administrative process. The agency states that the complainants
may file suit in district court, which does have jurisdiction to review
their claim and to void the Act.
Initially, we find that it is questionable whether complainants have
standing herein to challenge their failure to receive monies under a
statutory provision such as the Grandfather Provision. See Stiles
v. Department of Transportation, supra. What is different here is
that under the Grandfather Provision, the agency had no discretion
in determining how the rule was applied. As the Commission observed
in Stiles, with the PDP, the agency was instrumental in designing the
project, particularly in determining which position classifications would
be covered by the PDP; this distinction guaranteed the complainants the
standing to challenge the project. In the instant case, the agency had
no legislative authority to enact the Grandfather Provision; rather,
it was passed on by Congress.
However, even assuming that the complainants had jurisdiction
to challenge their failure to receive monies under the Grandfather
Provision, we find that the agency properly dismissed the complaints.
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides that an agency shall
dismiss a complaint or a portion of a complaint that is pending before
or has been decided by the agency or the Commission. Here, complainants
indicated in the present formal EEO complaints that they wished to be
included in the PDP, only this time retroactive to the date of the
institution of the Grandfather Provision. The Grandfather Provision
contained no new substantive provisions but only provided for retention
allowances to those already covered by the project. The Commission finds
that complainants in effect raised the same question herein that they
raised in their previous EEO complaints, whether the PDP discriminated
against them on the basis of their sex. That question, as noted above,
was already decided by the Commission in Stiles.
Therefore, after a review of the agency's request for reconsideration,
the previous decisions and the entire record, the Commission finds that
the agency's request meets the criteria of 29 C.F.R. � 1614.405(b),
and it is the decision of the Commission to grant the agency's request.
The decisions of the Commission in Appeal Nos. 01963551; 01963470;
01963496; 01963444; 01963631; and, 01963433 are REVERSED and the decision
herein remains the Commission's final decision. There is no further
right of administrative appeal from the decision of the Commission on
this request for reconsideration.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P1199)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
04-03-00
DATE Frances
M. Hart
Executive
Officer
Executive
Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
DATE
1 On November 9, 1999, revised regulations governing EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage of the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed.Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov.