0120090110
07-16-2010
Richard L. Scott, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Richard L. Scott,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120090110
Agency No. 2008-21685-FAA-05
DECISION
On May 22, 2008, Complainant filed an appeal from the Agency's May 15,
2008, final decision concerning his equal employment opportunity (EEO)
complaint alleging 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
REVERSES the Final Agency Decision.
ISSUE PRESENTED
The issue presented is whether Complainant was discriminated against based
on his race (Caucasian) and age (51) when he was denied opportunities
to work overtime during the period January through August 2007.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked at
the Agency's Corpus Christi, Texas facility as an Environmental Technician
(Air Traffic Systems Support), FV-2101. Complainant alleges that he
was not given the opportunity to work overtime as frequently as younger,
Hispanic employees. The Overtime Form for pay period 20 showed that the
four Hispanic employees in the office worked overtime at the rate of 12.5
(light duty), 204.5, 169.5, and 57.5 hours and the four White employees
worked overtime at the rate of 0 (limited duty), 0 (trainee), 22, and
17 hours (Complainant). Complainant complained about this situation
to management and was promised overtime opportunities but a week-long
project that he was assigned to was cancelled and the work was assigned
to another office. Complainant believes that the work was assigned to
another office because of his race and age.
Therefore, on December 6, 2007, Complainant filed an EEO complaint
alleging that he was discriminated against on the bases of race and age.
On December 31, 2007, the Agency dismissed Complainant's complaint for
failure to file his formal complaint within the prescribed 15-day time
frame. Complainant appealed the Agency's decision. The Commission
found that the Agency had not shown that Complainant untimely filed
his complaint on December 6, 2007, which had been alleged. See Scott
v. Department of Transportation, EEOC Appeal No. 0120081158, April
9, 2008. The Commission explained that where there is an issue of
timeliness, the Agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to the timeliness,
which includes providing evidence and/or proof to support its final
decision. See Guy v. Department of Energy, EEOC Request No. 05930703
(January 4, 1994), see also Gens v. Department of Defense, EEOC Request
No. 05910837 (January 31, 1992). The Commission therefore reversed
the Agency's final decision dismissing Complainant's complaint and
ordered the Agency to process the remanded claims in accordance with 29
C. F. R. � 1614. 108. Specifically, the Commission ordered the Agency
to issue to Complainant a copy of the investigative report and to give
Complainant the option of a Final Agency Decision or a hearing before
an EEOC Administrative Judge.
Rather than comply with the Commission's Order, on May 15, 2008,
the Agency submitted a Final Agency Decision which again dismissed
Complainant's complaint for failure to file his formal complaint within
the prescribed 15-day time frame. The Agency indicated that its
records showed that Complainant received the notice of right to file
a discrimination complaint on November 20, 2007, but did not file his
complaint until December 6, 2007, which was one day beyond the 15-day
time frame. The Agency included evidence from the file which showed
a postmark date of December 6, 2007, to support its claim that the
formal complaint was untimely filed. Complainant thereafter appealed
the Agency's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency defied the EEOC's order
to investigate his complaint and instead dismissed his complaint for a
second time on the basis of timeliness. For relief Complainant requests
45 hours of overtime compensation and the opportunity to educate managers
about their obligation to treat everyone fairly. The Agency did not
file a reply to the appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First,
Complainant is required to establish a prima facie case by showing
an inference of discrimination; next, the Agency must articulate a
legitimate, nondiscriminatory reason for its actions; and, lastly, the
burden of persuasion reverts back to the Complainant to demonstrate, by a
preponderance of the evidence, that the Agency's reason(s) for its action
was a pretext for discrimination, i.e., that the Agency's reason was not
its real reason and that it acted on the basis discriminatory animus.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); see also
U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715-716
(1983).
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. � 623(a)(1). When a Complainant alleges that he or she has been
disparately treated by the employing Agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,
[Complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the
outcome." Id.
Compliance with the Commission's Orders of corrective action is mandatory.
29 C.F.R. � 1614.502(a). In the instant case, the Commission finds
that the Agency failed to comply with the Commission's April 9, 2008,
Order to process the remanded claim and instead revisited the issue of
timeliness by submitting documentation showing the postmark that it had
initially failed to provide.
We note that, as a general rule, no new evidence will be considered on
appeal unless there is an affirmative showing that the evidence was
not reasonably available prior to or during the investigation. Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), Ch. 9 � VI. A.3. (Nov. 9, 1999). In this case, the Agency
seeks to introduce into evidence for the first time documentation
to establish the date that Complainant's formal complaint was filed.
On appeal, the Agency provides no justification for introducing new
evidence at so late a time, and fails to provide a reason as to why it
was not possible to introduce this evidence any earlier. Accordingly,
this evidence will not be considered.
Because the agency, on remand, did not articulate any reason as to why
Complainant was not offered overtime, the Commission finds that the
Agency failed to articulate a legitimate nondiscriminatory reason for
its action with respect to assigning overtime to Complainant. As the
Agency has not met its burden, we therefore conclude that Complainant
has established that he was discriminated against on the bases of race
and age with regard to the assignment of overtime.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the Final
Agency Decision and REMAND the decision for further proceedings in
accordance with the ORDER of the Commission, below.
ORDER
The Agency is ORDERED to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision
becomes final, the Agency shall tender to Complainant 45 hours of overtime
compensation.
2. Within ninety (90) calendar days of the date this decision
becomes final, the Agency shall provide EEO training to the supervisors
involved in this matter focusing on the Agency's obligation under Title
VII.
3. The Agency shall consider taking disciplinary action against
the supervisors responsible for violating Title VII. The Agency shall
report its decision to the Commission. If the Agency decides to take
disciplinary action, it shall identify the action taken. If the Agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline.
The Agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Corpus Christi, Texas work facility
copies of the attached notice. Copies of the notice, after being
signed by the Agency's duly authorized representative, shall be posted
by the Agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The Agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable
attorney's fees incurred in the processing of the complaint. 29 C.F.R. �
1614.501(e). The award of attorney's fees shall be paid by the Agency.
The attorney shall submit a verified statement of fees to the Agency --
not to the Equal Employment Opportunity Commission, Office of Federal
Operations -- within thirty (30) calendar days of this decision becoming
final. The Agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. � 1614.501.
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
July 16, 2010
Date
2
0120090110
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090110