0120112445
02-16-2012
Ezekiel Jenkins, Jr., Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Ezekiel Jenkins, Jr.,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120112445
Agency No. 2010-23490-FAA-05
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
February 16, 2011 decision, dismissing his complaint 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Upon review, the
Commission finds that Complainant's complaint was improperly dismissed
for failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Supervisory Program Manager at the Agency’s Mike Monroney
Aeronautical Center in Oklahoma City, Oklahoma. On November 22, 2010,
Complainant filed an EEO complaint alleging that the Agency subjected him
to discrimination on the bases of race (African-American), color (Black),
disability (physical), age (58), and in reprisal for prior protected EEO
activity when, effective August 29, 2010, he was reassigned from the
Agency’s Air Traffic Organization to a Supervisory Program Manager
position in the Agency’s Air Traffic Academy under the Agency’s
Airports, Regions, and Centers.
On February 16, 2011, the Agency issued a final decision dismissing
the complaint pursuant to 29 C.F.R. § 1614.107(a) for failure to state
a claim. The Agency determined that Complainant’s reassignment was
not an adverse action because Complainant’s pay, grade, duty station,
and supervisory status were not changed. As such, the Agency concluded
that the Complainant was not an aggrieved employee.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a) provides that an agency shall
dismiss a complaint that fails to state a claim under 29 C.F.R. §§�
�1614.103 or 1614.106(a). Commission regulations further provide that an
agency shall accept a complaint from any aggrieved employee or applicant
for employment who believes that he or she has been discriminated against
by the agency because of race, color, religion, national origin, sex,
age, disability, or reprisal. The Commission's Federal sector case
precedent has long defined an “aggrieved employee” as one who suffers
a present harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. Sims v. U.S. Postal Serv.,
EEOC Appeal No. 0120101113 (June 4, 2010) (citing Diaz v. Dep't of the
Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
In Cobb v. Dep't of Treasury, EEOC Appeal No. 01960215 (Mar. 13, 1997),
the Commission stated that, “terms, conditions, or privileges of
employment include, inter alia, promotion, demotion, discipline,
reasonable accommodation, appraisals, awards, training, benefits,
assignments, overtime, leave, tours of duty, etc.,” and that, “[a]
complaint which alleges unlawful disparate treatment regarding a specific
term, condition, or privilege of employment should not be dismissed for
failure to state a claim.” See e.g., Miller v. Soc. Sec. Admin.,
EEOC Appeal No. 01944464 (Apr. 4, 1996); Brown v. Dep't of Treasury,
EEOC Appeal No. 01943177 (Dec. 14, 1995).
Upon review, the Commission finds that Complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim. The Commission finds that being reassigned
to a different work area on a permanent basis is a term and condition
of employment. See Scales v. Dep’t of Veteran Affairs, EEOC Appeal
No. 0120082065 (July 16, 2008). Moreover, the Commission’s Federal
case precedent has long held that permanent reassignments affect terms
of employment even if there is no corresponding loss of grade or pay.
Pegram and Montoya v. Dep’t of the Army, EEOC Appeal Nos. 01A40504 &
01A40680 (Feb. 23, 2005); Costello v. U. S. Postal Serv., EEOC Request
No. 05980845 (Sept. 30, 1999); Neglia v. U. S. Postal Serv., EEOC Appeal
No. 01933082 (July 15, 1994). Accordingly, the Agency's final decision
is REVERSED, and the complaint is REMANDED for further processing in
accordance with the Order below.1
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The Agency shall issue
to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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.
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 (November 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 (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
February 16, 2012
Date
1 On appeal, Complainant alleges that additional discriminatory and
retaliatory acts occurred, including the Agency’s denial of his
selection package for an Air Traffic Manager position and denial of
Complainant’s debt waiver request in May 2011. These actions were
not the subject of the instant complaint. Complainant is advised that
if he wishes to pursue these additional claims he raised for the first
time on appeal, he should raise them with an EEO Counselor.
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01 20112445
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112445