0120110369
03-25-2011
Kile J. Pitts, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Kile J. Pitts,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120110369
Agency No. 2010-23298-FAA-02
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 7, 2010, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
For the reasons that follow, the Agency's final decision is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant,
formerly an Air Traffic Controller, was employed as a Labor Employee
Relations Specialist at the Agency's ASW-16 Branch, Southwest Region, Fort
Worth, Texas. On August 9, 2010, Complainant filed a formal complaint.
In its final decision, the Agency characterized Complainant's complaint
as alleging that it subjected him to discrimination on the basis of age
(born in 1966) when:
1. On November 20, 2008, Complainant became aware that he was not
selected for the position of Supervisory Air Traffic Controller under
Vacancy Announcement No. ASW-ATO-09-109518; and
2. While reviewing the EEOC's website on March 1, 2008, Complainant
became aware that compensation discrimination occurred when the Agency
implemented a change in 2008 that has a discriminatory effect on Air
Traffic Controllers who work or worked in the Flight Service Option
because a majority of the controllers are over 40 years old.
In its final decision, the Agency dismissed Complainant's complaint.
Specifically, the Agency dismissed claim 1 on the basis that stated
the same claim contained in Complainant's previous complaint (Agency
No. 2009-22471-FAA-02), and alternatively, on the basis that Complainant
failed to raise this matter during counseling, and it is not like or
related to the counseled claim. With respect to claim 2, the Agency
dismissed this claim on the basis that it was initiated by untimely EEO
counselor contact, and alternatively, on the basis that it failed to
state a claim because it was a generalized grievance.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that the Agency improperly dismissed
his complaint. Complainant argues that on March 4, 2010, he became aware
of the legal theory of compensation discrimination after reading about
it on the Commission's website in preparation for his prior complaint.
Complainant contends that the Agency mischaracterized claim 1 as merely
about his non-selection. Complainant maintains that in claim 1, he
is alleging that the Agency discriminated against him on October 28,
2008, when it implemented a policy change that made him ineligible
for the Supervisory Air Traffic Controller position and resulted in
compensation discrimination. Regarding claim 2, Complainant argues that
this matter is not a generalized grievance because the change in policy
reduced his annuity benefit by $19,620 per year, made him ineligible
for some promotions, and resulted in him having to work six additional
years to attain retirement. The Agency requests that we affirm its
final decision.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
In a previous formal complaint filed April 21, 2009, Complainant alleged
that because of his sex (male), age, and in retaliation for prior EEO
activity, the Agency failed to refer him to the selecting official for
the position of Supervisory Air Traffic Controller advertised by Vacancy
Announcement ASW-ATW-09-025-109518. Complainant contends that the
Agency mischaracterized his current complaint, and that claim 1 of the
instant complaint is not the same issue raised in his prior complaint.
Complainant contends that claim 1 of the instant complaint challenges
compensation discrimination, whereas the prior complaint only challenges
the non-selection.
A review of the current formal complaint reveals that Complainant
alleges that the Agency subjected him to unlawful discrimination when
it implemented new eligibility requirements for Air Traffic Controllers
that made Flight Service Air Traffic Controllers unable to attain an early
retirement and reduced their retirement annuity. Exhibit A. Complainant
further alleged that, because of the new eligibility requirements, he
was not selected for the Supervisory Air Traffic Controller position
advertised under Vacancy Announcement ASW-ATO-09-025-109518 because
he was no longer credited with specialized experience necessary for
the position.
We determine that the gravamen of Complainant's complaint is that the
Agency engaged in unlawful discrimination when, on October 28, 2008,
it implemented a policy change that resulted in his non-selection for a
Supervisory Air Traffic Controller position, a reduced annuity, having
to work additional years, a delayed retirement, and a reduced salary.
Although Complainant attempts to parse the instant complaint into
separate claims about the ongoing consequences of the policy change
(salary reduction, reduced annuity, non-selection), we find that the
pertinent act of alleged discrimination is the October 28, 2008, policy
change. Complainant contends that he became aware of the policy change
in or about November 2008. However, Complainant did not initiate EEO
counselor contact until April 10, 2010, well beyond the 45-day time limit
for initiating EEO counselor contact. Complainant has not presented any
argument that would warrant a waiver or extension of the applicable time
limits. Consequently, we AFFIRM the dismissal of Complainant's complaint
on the basis that it was initiated by untimely EEO counselor contact.1
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency's final decision
for the reasons set forth in this decision.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 25, 2011
Date
1 Because we find that the agency properly dismissed complainant's
complaint on the basis of untimely EEO counselor contact, we decline to
address the agency's dismissal other grounds.
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01-2011-0369
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110369