0120114265
02-15-2012
Larry E. Meucci, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Larry E. Meucci,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120114265
Agency No. 201124031FAA04
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 11, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Air Traffic Control Specialist (Front Line Manager) at an Agency
facility in Chicago, Illinois.
On July 14, 2011, Complainant filed a formal EEO complaint against the
Agency. In its decision dismissing the complaint, pursuant to 29 C.F.R. §
1614.107(a)(1), for failure to state a claim, the Agency defined the
claim raised as:
Complainant was subjected to discrimination on the bases of age (56)
and reprisal for prior protected EEO activity when, effective June 30,
2011, he was separated from his position as Air Traffic Control Specialist
because he reached the mandatory retirement age of 56.
In support of its dismissal decision, the Agency asserted that the
statutory provisions under 5 U.S.C. § 8335(a) for the mandatory
retirement of federal air traffic controllers is an established exception
to the ADEA which has been recognized by this Commission. Accordingly,
the Agency argues that Complainant cannot establish a violation of the
ADEA and the complaint must be dismissed for failure to state a claim.
The instant appeal followed. In his appeal brief, Complainant contends,
through counsel, that his complaint does not challenge the validity of
the mandatory retirement requirement at all and asserts that the Agency
mischaracterized Complainant’s concerns. Complainant asserts that
“[t]he Agency’s contention that [Complainant] seeks to challenge the
validity of the mandatory retirement age provision of 5 U.S.C. 8335(a)
is erroneous and misperceives [Complainant’s] complaint in all
respects.” Complainant contends that his claim is actually premised
on his November 21, 2010 removal from a position as Operations Manager,
which would have been exempt from the mandatory retirement requirement
on air traffic controllers, and his return to his former position which
was subject to the mandatory retirement age.1
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. 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 that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. §§
1614.103, .106(a). 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. Diaz v. Dep’t of the Air Force, EEOC
Request No. 05931049 (Apr. 21, 1994).
To the extent that the Agency correctly characterized the claim in this
case, the Commission has consistently held that complainants challenging
statutorily created exceptions to the ADEA fail to state a claim. See
Campbell v. Dep't of Justice, EEOC Request No. 05960550 (April 17, 1997);
Divita v. Dep't of Justice, EEOC Appeal No. 01996072 (April 18, 2001);
Schwarzberg v. Small Business Administration, EEOC Appeal No. 01A05167
(January 29, 2002). Therefore, the Agency’s dismissal of a challenge
to the statutorily mandated retirement age for air traffic controllers
on this rationale was correct.
However, as already noted, Complainant has argued on appeal that his
claim was not a challenge to the mandatory retirement age for air
traffic controllers, but rather concerns his November 2010 removal
from the position of Operations Manager, which would have been exempt
from the mandatory retirement requirement for air traffic controllers,
and his return to his former position which was subject to the mandatory
retirement age. Accepting this characterization of the claim as correct,
dismissal of the complaint is still appropriate.
EEOC Regulation 29 C.F.R. § 1614.107(a)(1) also requires the dismissal
of complaint that state the same claim as one that has already been
decided by the Agency or this Commission. The record in this matter
establishes that Complainant filed an earlier complaint (Agency Case
No. 201123777FAA04) with the Agency alleging that he was the victim
of age and reprisal discrimination when his detail to the position
of Operations Manager was terminated and he was returned to his air
traffic controller position on November 21, 2001. In a decision dated
April 28, 2011, the Agency dismissed the prior complaint for failure
to timely contact an EEO Counselor. Complainant appealed to the EEOC,
which affirmed the Agency’s dismissal. See Meucci v. Department of
Transportation, EEOC Appeal No. 0120112972 (October 24, 2011).
Accordingly, the Agency's final decision dismissing Complainant's
complaint for failure to state a claim is AFFIRMED for the reasons set
forth herein.
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 (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
February 15, 2012
__________________
Date
1 The parties disagree about Complainant’s status in the Operations
Manager position. While it is undisputed that he was first placed in
the position as a detail, Complainant asserts the detail was continued
beyond its expiration date and he was later competitively selected for the
position. Therefore, he characterizes his return to his former position
in November 2010 as a “demotion.” The Agency, on the other hand,
asserts it was simply the termination of a temporary detail. For the
purpose of our analysis of the correctness of the procedural dismissal
of this complaint, these differences are not relevant.
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0120114265
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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