0520120276
06-14-2012
Tracy A. Jenson, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Tracy A. Jenson,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Request No. 0520120276
Appeal No. 0120110182
Agency No. 201023093FAA06
DENIAL
Complainant timely requested reconsideration of the decision in Tracy A. Jenson v. Dep't of Transportation, EEOC Appeal No. 0120110182 (December 21, 2011). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
During the relevant period, Complainant worked as an Air Traffic Controller (ATC) at a control tower in Seattle, Washington. Complainant resigned from agency employment in 2003, at which time he began challenging the Agency's ATC pay structure in various venues. The record indicates that Complainant filed an appeal with the Merit Systems Protection Board, a civil action in a United States District Court, as well as a class complaint and individual complaints alleging that the Agency discriminated against him on the bases of sex (male) as to wages.
In a February 16, 2007 final decision, the Agency implemented an EEOC Administrative Judge's (AJ) dismissal of Complainant's class complaint for failing to meet class certification requirements. The Agency also dismissed the instant individual complaint pursuant to 29 C.F.R. �� 1614.107(a)(1), (a)(2) & (a)(9), for stating a claim that has been decided by the Agency or Commission, untimely EEO Counselor contact, and a clear pattern of misuse of the process, respectively. Complainant filed an appeal, which was docketed as EEOC Appeal No. 0120110182. In Jenson v. Dep't of Transportation, EEOC Appeal No. 0120110182, the Commission affirmed the Agency's procedural dismissals. The instant request for reconsideration from Complainant followed.
In his request for reconsideration, Complainant stated that there were errors of fact in our appellate decision. Specifically, he stated that there was a delay in moving a group of ATCs to higher level facilities, which caused them to incur lower pay rates and increases; and as a result of the delayed move, he was placed at the bottom of the ATC pay band. Complainant acknowledged that he grieved the pay structure in other venues. In opposition to Complainant's request, the Agency stated that Complainant failed to address the criteria for requests for reconsideration. Further, the Agency stated that Complainant addressed the merits of his claims rather than the procedural insufficiencies. In response, Complainant stated that there are no other matters currently pending regarding a violation of the Equal Pay Act.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request. We find that Complainant reiterates prior contentions that have been previously addressed. The decision in EEOC Appeal No. 0120110182 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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:
______________________________
Dexter Brooks, Deputy Director
Office of Federal Operations1
06/14/2012
__________________
Date
1 The Director of the Commission's Office of Federal Operations has recused himself from participation in this decision.
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2
05-2012-0276
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013