U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Reid J.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120160732 Agency No. 2015-26375-FAA-03 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated November 2, 2015, 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 a Resident Engineer at the Agency's Eastern Service Area (ESA), Pittsburgh Engineering Office in Coraopolis, Pennsylvania, also referred to as the Pittsburgh Engineering Office. On October 14, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of age (50). The Agency defined the issues alleged as the following: A. Complainant was discriminated against based on his age when denied equal promotional opportunities to the J Band level because the Agency's Eastern Service Area, Engineering Services organization, for years, has not hired J Band level General Engineers at his duty location, known as the Pittsburgh Engineering Office, located in Coraopolis, Pennsylvania. B. Complainant was discriminated against based on his age when, on or about June 29, 2015, he learned that he was not selected for the temporary position of Supervisory Engineering Technician, FV-802-J, advertised under Intra-Facility Announcement No. AEA-SOL-15-002?2 The Agency dismissed claim (A), pursuant 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency found that Complainant's claim was a generalized grievance that applied to everyone at his duty location regardless of protected basis. The Agency then dismissed claim (B), pursuant 29 C.F.R. § 1614.107(a)(4), for raising the same claim in a grievance procedure. As such the Agency dismissed the complaint in its entirety. This appeal followed. On appeal, Complainant asserted that the Agency has decided to not post any J Band level positions at the Pittsburgh Engineering Office. Complainant asserted that this has a negative impact on those over 40 for it is forcing the employees to retire. Complainant argued that the Agency is trying to close the Pittsburgh Engineering Office through attrition. ANALYSIS AND FINDINGS Claim (A) Based on a fair reading of the complaint and the appeal, we find that the Agency failed to correctly identify the claim raised by Complainant. Based on our review of the record, we determine that Complainant has asserted that the Agency's policy of not posting J Band positions at the Pittsburgh Engineering Office and plan to close the Pittsburgh Engineering Office by attrition constituted discrimination against its employees over the age of 40. We determine that Complainant is alleging a disparate impact claim - that a facially neutral policy or practice has a disparately impact on members of a protected class. As such, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim is not appropriate. We will remand Complainant disparate impact claim to the Agency for further processing. Claim (B) To the extent the Agency dismissed the matter, pursuant to 29 C.F.R. § 1614.107(a)(4), for raising the same claim in a grievance, we find that the Agency's decision is not supported. The record indicates that Complainant did file a grievance on July 20, 2015, regarding his non-selection on June 29, 2015 for the temporary Supervisory Engineering Technician position advertised under Intra-Facility Announcement Number AEA-SOL-15-002. However, as Complainant makes clear in his December 5, 2015 statement filed in support of his appeal, he never raised this claim in his EEO complaint. Therefore, there was no need for the Agency to even consider this matter in its dismissal decision. CONCLUSION Accordingly, we REVERSE the Agency's dismissal of Complainant's complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claim (disparate impact) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant 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 Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the Agency's letter of acknowledgment to Complainant 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 (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 (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations May 19, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 In his statement on appeal, Complainant clarifies that the Agency erred in characterizing this claim as part of his EEO complaint, as he never raised it within the EEO process. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160732 5 0120160732