0120162522
06-15-2018
Thaddeus N.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Thaddeus N.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120162522
Agency No. 2015-26252-FAA-02
DECISION
On July 26, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's July 19, 2016, final order which adopted the order of an EEOC Administrative Judge procedurally dismissing his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for the position of Air Traffic Control Specialist (Developmental), GS-2152 at the Agency. On August 12, 2015, Complainant filed an EEO class complaint alleging discrimination on the part of the Agency on the bases of race (not designated), national origin (not designated), and color (not designated) when the Agency terminated its hiring and selection system and implemented a new hiring and selection system.
By letter dated August 28, 2015, the Agency forwarded the class complaint to the EEOC's Washington Field Office for assignment to an Administrative Judge for review and processing, requesting that the EEOC provide its recommendation to accept or dismiss the class complaint.
On July 6, 2016, the Administrative Judge (AJ) issued an Order of Dismissal, concluding that Complainant, the putative Class Agent in the instant matter, had raised the same matters that were the subject of a civil action currently pending before the United States District Court of Arizona, i.e., Brigida v. U.S. Dep't of Trans., Case No. 2:15-cv-02654-DLR, filed on December 30, 2015, as amended August 19, 2016.2 Specifically, the AJ determined that under 29 C.F.R. �1614.409, the filing of a civil action required termination of EEOC processing of the complaint and dismissal under 29 C.F.R �1614.107(a)(3).
The AJ found that a comparison of the civil action and the administrative class complaint which is the subject of this appeal, raise the same claims and allegations of fact, e.g., that Complainant was subjected to discrimination and disparate impact based on race, color and national origin, when, among a number of things, the Agency purged its Qualified Applicant Register and initiated a new procedure for hiring Air Traffic Controllers, in an effort to produce a more racially diverse applicant pool.
On appeal, Complainant avers, in general, that the Brigida case is distinguishable as it involves the purge of the applicant register, and the instant matter involves the implementation of a new hiring procedure for Air Traffic Controllers. Alternatively, the Agency contends that the Order of Dismissal should be affirmed because Complainant "challenges the same Agency actions as set forth in the pending Brigida civil action."
ANALYSIS AND FINDINGS
We agree with the AJ's decision. The record reveals that the claims raised in the United States District Court civil action are the same as those raised in the instant complaint. The amended complaint in the Brigida civil action clearly challenges the adoption of the new hiring procedure, as well as the purge of the applicant register. The regulation found at 29 C.F.R. �1614.409 provides that the filing of a civil action "shall terminate Commission processing of the appeal." Commission regulations mandate dismissal of the EEO complaint under these circumstances so as to prevent a Complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. See Stromgren v. Dep't of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Dep't of Justice, EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (October 25, 1988).
The Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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).
COMPLAINANT'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. 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
_6/15/18_________________
Date
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.
2 On November 8, 2016, Civil Action No. 2:15-cv-02654 was transferred to the United States District Court for the District of Columbia, and assigned a new case number, 1:16-cv-2227, which is still pending.
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