0120110182
12-21-2011
Tracy A. Jenson, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Tracy A. Jenson,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120110182
Hearing No. 550-2010-00261X
Agency No. 2010-23093-FAA-06
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the Agency's final
order, dated February 16, 2007, pertaining to his class and individual
complaints of unlawful 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., the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq., and the Equal Pay Act of 1963
(EPA), as amended, 29 U.S.C. § 206(d) et seq.
BACKGROUND
In the 1990s, the Agency initiated the Air Traffic Controller (ATC)
Facility Reclassification Project, which privatized smaller, low-volume
air traffic control towers. The Agency planned to move about 800 ATCs
from those towers to higher-volume towers over the course of four years.
Complainant, the putative Class Agent and a former ATC at the Boeing Field
Control Tower in Seattle, Washington, was scheduled to be transferred
sometime in the fourth year. The process was delayed after the Union sued
in the United States District Court for the Northern District of Ohio.
During this delay, the Agency and the Union entered into a collective
bargaining agreement that established a new pay structure for ATCs.
The delay caused by the Union's litigation, along with changes associated
with the new pay system, caused the parties to execute several memoranda
of understanding to address the circumstances. Complainant resigned in
2003 and began challenging the Agency’s pay structure in various venues.
Complainant filed a class complaint alleging that the Agency subjected
him to discrimination on the bases of sex (male) and age (53) when
the Agency paid a female Air Traffic Controller more to perform the
same job. In addition, Complainant alleged that a “discriminatory
FAA/Union agreement…violates pay regulations with 1% of all Air Traffic
Controllers.”
The complaint was forwarded to the EEOC San Francisco District Office for
a decision on class certification. On July 7, 2010, the Administrative
Judge (AJ) issued a decision denying certification of the class.
The AJ noted that in the Agency’s opposition brief, it determined that
Complainant had attempted to litigate the same allegations in this class
complaint multiple times in various venues. In response, Complainant
stated that “[t]he MSPB ruled that they do not have jurisdiction over
it, it has NEVER gone before an EEOC judge, and the Court of Federal
Claims (which ruled on the SECONDARY injustice, NOT the PRIMARY injustice)
made a CLEARLY erroneous ruling…” Additionally, Complainant clarified
his argument by stating that “a Seattle EEOC Judge denied my request for
a hearing, which I believe is another violation of my Civil Rights.”
The AJ determined that that complaint (Agency No. 2009-22541-FAA-02)
was previously dismissed by the Agency and another Administrative Judge.
As a result, the AJ determined that Complainant had previously raised
the claim before the Commission.
In addition, the AJ found that Complainant responded to the dismissal of
his individual EEO complaint by filing a civil action in the United States
District Court for the Western District of Washington. Complainant
confirmed this when he stated that he had “motioned the court to
move the case to the Spokane Federal Court…” As a result, the AJ
dismissed Complainant’s class complaint for stating the same claim that
is pending before or has been decided by the Agency or the Commission
pursuant to 29 C.F.R. § 1614.107(a)(1) and pursuant to 29 C.F.R. §
1614.107(a)(3) as the subject of a pending civil action in United States
District Court. In addition, the AJ noted that Complainant’s complaint
should be dismissed pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely
EEO counselor contact. The AJ found that Complainant resigned from the
Agency in April 2003, more than six and a half years before his December
9, 2009 EEO Counselor contact. As Complainant proffered no evidence
excusing the untimeliness of the present complaint, the AJ found that
it should also be dismissed for untimely EEO Counselor contact.
Finally, the AJ determined that the requirements for class certification
were not met. Specifically, the AJ noted that Complainant, who serves as
class representative himself, is not an attorney, and although a male,
he seeks to represent both men and women in his Equal Pay Act class.
For all of the discussed reasons, the AJ dismissed the class complaint.
On February 16, 2007, the Agency issued a final order fully implementing
the AJ's decision. In addition, the Agency dismissed Complainant’s
individual complaint. The Agency found that Complainant had filed
multiple informal and formal complaints regarding the same matter
(including Agency Nos. 2006-20012-FAA-02, 2009-22541-FAA-02, and
2010-23393-FAA-02). As a result, the Agency dismissed the individual
complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for stating a claim that
has been decided by the Agency or Commission. Additionally, the Agency
determined that the complaint should be dismissed pursuant to 29 C.F.R. §
1614.107(a)(2) for untimely EEO Counselor contact and pursuant to 29
C.F.R. § 1614.107(a)(9) for a clear pattern of misuse of the process.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates arguments previously made below.
Namely, Complainant alleges that the collective bargaining agreement
entered into by the Agency and the Union violated the Equal Pay Act.
Further, Complainant argues that as a result of the discriminatory
collective bargaining agreement, he was placed at the bottom of the
Agency’s new pay band while a female co-worker was paid more. Finally,
Complainant contends that when he first contacted the EEO Counselor in
2003, she failed to advise him that the Equal Pay Act does not require
proof of intent to discriminate and had she advised him this, he would
have continued with a formal complaint. As a result, Complainant requests
that the Commission reverse the final order.
ANALYSIS AND FINDINGS
The purpose of class action complaints is to economically address
claims “common to [a] class as a whole … turn[ing] on questions
of law applicable in the same manner to each member of the class.”
General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 155
(1982). Under EEOC regulations, a class complaint must allege that:
(i) the class is so numerous that a consolidated complaint concerning
the individual claims of its members is impractical; (ii) there are
questions of fact common to the class; (iii) the class agent's claims are
typical of the claims of the class; and (iv) the agent of the class, or,
if represented, the representative, will fairly and adequately protect the
interests of the class. 29 C.F.R. § 1614.204(a)(2). A class complaint
may be dismissed for failing to meet the above-listed requirements,
or for any grounds provided in 29 C.F.R. § 1614.107(a).
Upon review, the Commission finds that the class and individual complaints
were properly dismissed. The record reveals that Complainant has
filed multiple discrimination complaints and challenges in various
venues regarding the Agency’s pay structure. Specifically, in
2003, Complainant filed, and later withdrew, an EEO class complaint
(Agency No. 2004-50263-FAA) regarding the alleged discriminatory pay
structure. In addition, Complainant filed an EEO complaint (Agency
No. 2009-22541-FAA-02) alleging that the Agency violated the EPA when
it applied the wrong pay rule to set his pay. The Agency dismissed the
complaint and Complainant filed a civil action on September 13, 2009,
(identified as 09-cv-01314-CMP) in United States District Court for
the Western District of Washington. In his filing with the court,
Complainant stated that the “failure of the [Agency] to follow pay
regulations with the small group of us caused an illegal distribution of
a fixed amount of Federal Payroll Money…29 people have been cheated
out of an average of $13,000 per year…” Thus, the claims raised
therein encompass the claims raised in the instant class complaint.
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 (Oct. 19, 1989); Kotwitz v. U.S. Postal Serv.,
EEOC Request No. 05880114 (Oct. 25, 1988). Accordingly, Complainant’s
appeal is dismissed. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov, 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 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 (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:
______________________________
Dexter Brooks, Deputy Director
Office of Federal Operations1
December 21, 2011
Date
1 The Director of the Commission’s Office of Federal Operations has
recused himself from participation in this decision.
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0120110182
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013