01982278
03-10-1999
Thomas J. Loos, Appellant, v. Rodney E. Slater, Secretary Department of Transportation Federal Aviation Administration Agency.
Thomas J. Loos v. Department of Transportation
01982278
March 10, 1999
Thomas J. Loos, )
Appellant, )
)
v. ) Appeal No. 01982278
) Agency No. 92-0182
Rodney E. Slater, )
Secretary )
Department of Transportation )
Federal Aviation Administration )
Agency. )
_________________________________)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) dated January 23, 1998 dismissing appellant's allegation
that the agency had failed to comply fully with an earlier FAD, dated
December 10, 1993.
ISSUE PRESENTED
The principal issue presented by this appeal is whether the agency
correctly held that appellant failed timely to allege noncompliance with
a final agency decision.
BACKGROUND
In its December 10, 1993 FAD (1993 FAD), the agency had determined
that appellant had been discriminated against on the basis of physical
disability (dysplasia) when the agency failed to accommodate his
disability during training.
Following the issuance of the 1993 FAD, the agency reinstated appellant in
its training program. In August 1995, before his training was completed,
the agency suspended appellant from training "due to unsatisfactory
progress." On November 9, 1995, appellant was permanently removed from
the training program. On May 19, 1996, the agency terminated appellant's
employment
In response to these actions, beginning in September 1995, appellant
took a series of steps, including writing letters, and filing
EEO complaints and grievances. Of particular relevance here is a
memorandum, dated November 22, 1995, from appellant's representative
to local agency management stating that the agency's discontinuation of
appellant's training "is contrary to the EEOC judgment and DOT finding
of discrimination." However, not until April 3, 1996, did appellant
write to the Department of Transportation EEO director concerning the
agency's alleged noncompliance with the 1993 FAD. In that letter,
appellant explained that he had not previously communicated with that
office because he had not been aware until March 22, 1996, "that I must
submit my allegation of non-compliance against my employer, the Federal
Aviation Administration, to your office."
The agency dismissed appellant's allegations of noncompliance with
the 1993 FAD on the ground that appellant had failed to comply with 29
C.F.R. �1614.504(a) in that he "knew or should have known" about the
agency's alleged noncompliance in late 1995 and that his letter of April
3, 1996 was untimely under the 30-day deadline set out in �1614.504(a).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.504(a) provides that a final agency
decision that has not been the subject of an appeal or a civil action
shall be binding on the agency. The Regulation also provides that if
a complainant believes the agency has failed to comply with the terms
of the final agency decision, the complainant shall notify the EEO
Director in writing of the alleged noncompliance within 30 days of when
the complainant knew or should have known of the alleged noncompliance.
This Commission has held, however, that a failure to comply with the
30-day deadline imposed by �1614.504(a) cannot justify the dismissal of an
allegation of noncompliance with a final agency decision unless the agency
can show that it notified appellant of the requirements of �1614.504(a)
or can prove that appellant had actual knowledge of those requirements.
Ballentine v. Tennessee Valley Authority, Request No. 05950598 (March 14,
1996).
Here, the agency is unable to meet that burden. The record contains
no evidence that it notified appellant of the 30-day deadline of
�1614.504(a). Nor does the record support a finding that appellant had
actual knowledge of the 30-day deadline. Appellant explicitly denies
having been aware of the requirements of �1614.504(a). This denial is
not inconsistent with appellant's own actions in this matter. The record
shows that appellant mounted a substantial effort promptly to oppose the
agency's decision to suspend and remove him from the training program.
Had appellant been aware that �1614.504(a) required him to contact
the agency EEO Director within 30 days, it would have required only a
minimal additional effort from him to do so. Under these circumstances,
appellant's failure to comply with �1614.504(a) supports a finding
that he was not aware of that section's requirements. Accordingly, we
find that appellant did not have actual knowledge of the requirements
of �1614.504(a) prior to March 22, 1996. In the absence of such actual
knowledge, the Commission holds that the thirty-day time period did not
expire prior to appellant's April 3, 1996 notice of agency noncompliance
with the 1993 FAD. Therefore, we find that the agency improperly
dismissed the complaint.
MOTION TO DISMISS
In addition to urging affirmance of the FAD, the agency has filed a
"Motion to Dismiss Appellant's Appeal and to Remand the Complaint to the
Agency for Dismissal." In support of this motion, the agency submits a
copy of a complaint appellant has filed against the agency in the United
States District Court for the District of Minnesota and argues that the
filing of this complaint requires dismissal of the instant matter under
29 C.F.R. �1614.107(c).
Dismissal on these grounds is warranted if the agency can show that
the matter on appeal here is "the basis of a pending civil action."
This the agency cannot do because the complaint in the civil action is
not based on the agency's noncompliance with the 1993 FAD as is the
instant appeal. Indeed, appellant has framed his allegations in the
civil action explicitly to exclude the issues raised by the agency's
noncompliance with the FAD. The complaint states that "Plaintiff may move
to amend [the civil action] to include the allegations of discrimination
and retaliation alleged in [the EEOC appeal] depending on the final
outcome" of the appeal. Civil Action Complaint � 7. For this reason,
until appellant seeks and is granted leave to amend his civil action
to include allegations of agency noncompliance with the 1993 FAD,
the agency is not entitled to dismissal of the instant matter under 29
C.F.R. �1614.107(c).<1>
For the foregoing reasons, the agency's decision dismissing the
allegations of noncompliance is REVERSED and we REMAND the allegations
to the agency for further processing in accordance with this decision
and applicable regulations.
Accordingly, we VACATE the FAD and REMAND the allegation to the agency
in accordance with this decision and the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. � 1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. ��1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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) (Supp. V 1993). If the appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.10.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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.
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. 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 (Z1092)
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:
March 10, 1999 ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The agency also argues that appellant's allegations are repetitious
of other EEO complaints he has filed and therefore should be dismissed.
However, the agency has raised this issue for the first time on appeal
and, accordingly, we do not address it.