01A15127_r
08-23-2002
John A. Pallante, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
John A. Pallante v. Department of Transportation
01A15127
August 23, 2002
.
John A. Pallante,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A15127
Agency No. 1-00-1117
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated July 27, 2001, 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In his complaint, complainant alleged that
he was subjected to discrimination on the bases of sex and age when,
on October 1, 1998 and May 25, 1999, he was disparately impacted by
the implementation of the agency's Air Traffic Compensation Pay Plan
(ATCPP) and associated Movement Rules, in that they combined to cause him
(as a 2152 series headquarters employee) to receive a less beneficial
pay increase than similarly situated employees and otherwise adversely
affected his career mobility and opportunity for increased compensation.
The agency decision dismissed the complaint for failure to state a claim,
and, alternatively, for untimely EEO Counselor contact. Specifically,
the agency found that the claims raised a general grievance, not an
individual harm suffered by complainant. The agency reasoned that, as
complainant shared his claim concerning lost pay and mobility with all
the regional and headquarters 2152 staff, his claim did not constitute
an individualized harm. Concerning untimely EEO Counselor contact,
the agency found that complainant's July 8, 1999 EEO Counselor contact
was more than forty-five days beyond the October 1, 1998 implementation
of the pay plan cited by complainant, and was therefore untimely.
Upon review, we find that the agency improperly dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(1)and (a)(2). In the
present case, complainant asserts a claim that he is personally harmed by
the combined effect of the ATCPP and associated Movement Rules because
he is not receiving the same pay as others in the same 2152 job series
and his career mobility and opportunity for increased compensation have
been restricted. As complainant identified specific injuries with
respect to the terms and conditions of his employment, we find that
he has stated a claim. See Crandall v. Department of Veterans Affairs,
EEOC Request No. 05970508 (September 11, 1997); Coleman v. Department of
Transportation, EEOC Request No. 05A10034 (February 28, 2001). Moreover,
because complainant's claim of discrimination is related to the Movement
Rules issued on May 25, 1999, we find that complainant's July 8, 1999
EEO Counselor contact was within forty-five days of that event, and
therefore timely.
We also note that complainant's complaint includes a claim of disparate
impact based on age. Although certain Courts have concluded that
claims of disparate impact in age discrimination complaints are not
cognizable, the Commission has ruled that a complainant can state a
claim of discrimination using the disparate impact theory under the
ADEA. Parker v. Department of the Navy, EEOC Request No. 05970486
(March 25, 1999); Mitchell v. Department of the Interior, EEOC Appeal
No. 01990787 (January 10, 2002) (citations omitted). The agency shall
therefore investigate both bases of the complaint under the disparate
impact theory of discrimination.
Accordingly, the agency's dismissal of complainant's complaint is
REVERSED, and the complaint is REMANDED for further investigation in
accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 23, 2002
__________________
Date