01997015
10-03-2001
Jacqueline M. McDonough, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Jacqueline M. McDonough v. Department of Transportation
01997015
October 3, 2001
.
Jacqueline M. McDonough,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 01997015
Agency No. 4-98-021
Hearing No. 260-98-7280X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD), concerning her equal employment opportunity (EEO) complaint of
unlawful 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges she was discriminated against on the basis of sex (female),
when she was not selected or reassigned to a Quality Assurance Training
Specialist (QATS) position, GS-2152-12. For the following reasons,
the Commission reverses the agency's FAD.
BACKGROUND
The record reveals that complainant, a Federal Aviation Administration
(FAA) Air Traffic Control Specialist (ATCS), GS-2152-12, at the Cedar
Rapids Air Traffic Control Tower (Cedar Rapids ATCT) in Cedar Rapids,
Iowa, filed a formal EEO complaint with the agency on November 9, 1997,
alleging that the agency had discriminated against her as referenced
above.
Complainant first began her employment with the FAA on July 1, 1991.
After attending the FAA Academy in Oklahoma City, Oklahoma, she was
employed at the Cleveland Air Route Traffic Control Center (Cleveland
ARTCC), Cleveland, Ohio, and on September 5, 1994, she became a Full
Performance Level ATCS, GS-2152-14. On June 24, 1996, she started work at
the Cincinnati Air Traffic Control Tower (Cincinnati ATCT), Cincinnati,
Ohio, as a GS-2152-14. From Cincinnati, complainant went to Cedar
Rapids, as an ATCS, GS-2152-12, effective August 31, 1997. In transferring
to the Cedar Rapids ATCT, complainant was motivated by the fact that
the Cedar Rapids area was where she grew up and had family members.
However, in February 1997, complainant expressed her interest with the
Air Traffic Manager (ATM) in Cedar Rapids to talk about transfer options
and was informed of the possibility of a QATS staff position opening up.
On February 28, 1997, complainant wrote to the ATM and enclosed copies of
an Internal Placement Package for an ATCS position as well as Applications
for the QATS position, a Plans and Procedures Specialist position, and
a Supervisor position. She indicated she would come to Cedar Rapids in
any capacity for which she would be accepted and that she would pay for
relocation costs. Complainant, nevertheless, expressed her preference for
the QATS position, viewing it as career-enhancing and emphasizing that
experience in a staff position, such as the QATS position, would advance
her career. The agency acknowledged in its FAD that, for complainant,
the QATS position would have been career enhancing. FAD at 18.<1>
From February through March 1997, complainant repeatedly contacted the
ATM, verbally, in person, and in writing, and expressed her keen interest
in a staff position. At a meeting with the complainant, the ATM, however,
mentioned that Cedar Rapids ATCT traditionally was known as an all white,
male facility with negative attitudes towards women and affirmative action
in general. In March 1997, the ATM assured complainant he would notify
her should the QATS staff position open up. The ATM sent a memorandum
May 2, 1997, to all Personnel in Cedar Rapids ATCT, stating the QATS
position would be vacant and would be filled by reassignment. The ATM
did not tell complainant about the availability of the QATS position.
In deciding to fill the QATS position from within the Cedar Rapids ATCT,
a position swap occurred between the person vacating the QATS position
(male), GS-2152-12, and Selectee (male), ATCS, GS-2152-12 in June 1997.
Complainant was offered an ATCS, GS-2152-12 position, in Cedar Rapids
ATCT on July 9, 1997, effective August 31, 1997, and she accepted.
When she started work at Cedar Rapids
ATCT, she was told there was a new QATS. That was the first indication
complainant had that the QATS position had been open and was filled.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a decision
finding discrimination because of her sex, when she was not considered
for the position of QATS, GS-2152-12. The AJ concluded that complainant
established a prima facie case of sex discrimination because complainant
applied and was qualified for the QATS position for which a male was
selected under circumstances from which an inference of discrimination
could be drawn. The AJ then concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the agency articulated that it filled the position by internal placement
procedures, and thus complainant was not considered because she was not
at Cedar Rapids at the time the position was filled. The agency also
indicated that complainant would not have been selected because she did
not have the requisite experience. The agency further suggested that it
offered complainant the ATCS position, which she accepted. However, the
AJ concluded that complainant established that more likely than not, the
reasons provided by the agency were a pretext to mask sex discrimination
against complainant.
In its FAD, the agency found that complainant established a prima facie
case of discrimination based on sex. The agency thus did not dispute
that complainant was qualified for the QATS position. The agency
then articulated several legitimate, non-discriminatory reasons for
why complainant was not selected. First, by the time the QATS was
available, complainant had accepted the ATCS position. Second, the
agency defended the selection of Selectee by suggesting that Selectee
was better qualified than complainant. Finally, in the agency's view,
as a matter of discretion, the ATM decided, and had the right to decide,
to fill the position by reassignment and solicited interest in the
position in-house.
Complainant appealed. Complainant essentially contends that the AJ
correctly summarized the facts and reached the appropriate conclusions
of law.
However, complainant, on appeal, also points out that the AJ limited her
testimony to the time period of several months after the QATS position
was filled in June 1997, and thus that her testimony did not go into
the allegedly retaliatory conduct she endured since becoming employed at
Cedar Rapids ATCT. Complainant thus requests that compensatory damages
be awarded for the alleged retaliation.
ANALYSIS AND FINDINGS
Merits of Complainant's Complaint
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). A complainant must first establish
a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited reason was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Next, the agency must articulate a legitimate,
nondiscriminatory reason for its action(s). Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has offered
the reason for its action, the burden returns to the complainant to
demonstrate, by a preponderance of the evidence, that the agency's reason
was pretextual, that is, it was not the true reason or the action was
influenced by legally impermissible criteria. Burdine, 450 U.S. at 253;
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Complainant may establish a prima facie case of discrimination in the
nonselection context by showing that: (1) she is a member of a protected
class; (2) she was qualified for the position; (3) she was not selected
for the position; and (4) she was accorded treatment different from
that given to persons otherwise similarly situated who are members of
her protected group. Williams v. Department of Education, EEOC Request
No. 05970561 (August 6, 1998). Complainant may also set forth evidence of
acts from which, if otherwise unexplained, an inference of discrimination
can be drawn. Furnco, 438 U.S. at 576.
It is undisputed that complainant established a prima facie case of
sex discrimination. The agency articulated, as previously indicated,
a number of legitimate non-discriminatory reasons for its action.
We find that substantial evidence supports the AJ's findings that the
complainant has demonstrated, by the preponderance of the evidence,
that the agency's reasons were pretextual.
In addition, the Commission notes that the credibility determinations
of the AJ, favoring complainant's testimony over the ATM's testimony,
are entitled to deference due to the AJ's first-hand knowledge, through
personal observations, of the demeanor and conduct of the witnesses
at the hearing. Esquer v. United States Postal Service, EEOC Request
No. 05960096 (September 6, 1996); Willis v. Department of the Treasury,
EEOC Request No. 05900589 (July 26, 1990).
Our analysis follows.
Whether complainant accepted the ATCS position before the agency became
aware of the open QATS position.
In the agency's view, complainant had been offered an ATCS position
at Cedar Rapids ATCT in April 1997, and she had accepted the offer.
According to the agency, the ATM was not notified that he could reassign
the QATS to an ATCS position until May 1997. It is undisputed that the
ATM sent a memorandum on May 2, 1997, to all Personnel in Cedar Rapids
ATCT, stating that the QATS position would be vacant and would be filled
by reassignment. It is therefore the agency's position that complainant
accepted the ATCS position before the agency became aware of the open
QATS position.
The AJ found that complainant accepted the agency's offer for the ATCS,
GS-2152-12, in Cedar Rapids ATCT on July 9, 1997, effective August
31, 1997. The record reflects that the agency made a firm offer to
complainant of the position on June 30, 1997, and that complainant
accepted the agency's firm offer for the ATCS, GS-2152-12 position on
July 9, 1997, effective August 31, 1997. ROI, Ex. F-10. The offer to
complainant in April 1997 was only a tentative offer and for an ATCS,
GS-2152-11 position. Id. The record does not indicate that complainant
ever acted on the tentative offer. In any event a tentative offer is not
the same as a firm offer. The ATM indicated that he did not know when
the final offer of the ATCS position was made to complainant, because
he did not make those offers which were made by other branches of the
agency. Accordingly, the evidence supports the finding that complainant
did not accept the ATCS position before the agency became aware of the
open QATS position.
Qualifications of Complainant and the Selectee.
Complainant began work at the agency in July 1991. After attending the
FAA Academy, complainant began employment as an ATCS at the Cleveland
ARTCC for almost five years. On September 5, 1994, complainant attained
journeyman status as a Full-Performance Level (FPL) ATCS, GS-2152-14,
which meant she completed development training and was certified
for all positions. On June 24, 1996, complainant began working at
Cincinnati ATCT as an ATCS, GS-2152-14. When she left the Cincinnati
ATCT, she was certified on all of the positions in the tower, as well
as all departure and arrival positions in the TRACON. Complainant's
training in Cincinnati ATCT was cut short to give training resources to
others once she had reason to believe she would go to Cedar Rapids ATCT.
Complainant left Cincinnati ATCT as a Developmental, and was not a FPL,
since an ATCS had to be certified at each new facility as conditions
were different in different facilities. Complainant earned one Letter
of Commendation and two Time-Off Awards.
Selectee, a ATCS, GS-2152-12, had been at Cedar Rapids ATCT for
approximately eight years with six years experience as an FPL.
In addition, he had been named Outstanding Instructor of the Year,
had a degree in communications, and was highly recommended by his
first-line supervisor. Additionally, the record shows that he had
received one Letter of Commendation, five Letters of Appreciation,
one Special Achievement Award, and two Time-Off Awards.
Although complainant was not FPL at Cedar Rapids ATCT, as previously
indicated, an ATCS has to be certified at each new facility as conditions
are different in different facilities, and complainant had never served
as an ATCS at Cedar Rapids ATCT. Nevertheless, within the FAA system,
air traffic control centers are rated Level 1, 2 or 3, with Level 3 being
the busiest. Cleveland ARTCC is a Level 3 Center. Air traffic control
terminals are rated from Level 1 through Level 5, with Level 5 being
the busiest. A Level 3 Center is the equivalent of a Level 5 Terminal.
Cincinnati ATCT is a Level 5 Terminal. Thus, Level 3 Centers and Level
5 Terminals are top ranking for that specific option within the air
traffic control field. Accordingly, complainant worked at the highest
level - and thus the busiest - facilities within the air traffic world.
The agency acknowledged that Cincinnati ATCT is a higher level facility
than Cedar Rapids ATCT. FAD at 15. It appears as discussed, infra, that
Cedar Rapids ATCT is a Level 3 Terminal. The agency further acknowledged
that complainant �was likely qualified for the QATS position.� Id.
Indeed, complainant's qualifications compared to Selectee's are apparent
to the extent she served as a GS-14 ATCS, whereas the Selectee's service
was as a GS-12 ATCS.
In addition, complainant's Cleveland ARTCC Area Supervisor for
approximately five years testified on her behalf, indicating that
complainant performed her work on a very satisfactory level, her teamwork
skills were strong, and that she had satisfactorily assisted in training
developmentals. He also stated that complainant would qualify anywhere
for a QATS position because she had worked in two major facilities,
and had training and experience in both. He finally indicated that
complainant's exposure to air traffic, in general, was much greater,
because of her experience at a Level 3 center and Level 5 terminal,
than someone who had worked only at a Level 3 terminal, such as Cedar
Rapids ATCT, with respect to the Selectee.
Finally, we note that the AJ credited complainant's testimony that
when she spoke with the ATM after the selection was made, the ATM
told complainant if the job had been filled competitively, no one in
Cedar Rapids ATCT could have competed with her. AJ Decision at 12.
The AJ thus essentially suggested that complainant had shown that
she was better qualified than the selectee. The AJ further found that
complainant's combined experience made her well qualified, and that the
ATM knew complainant was qualified. Id.
Management's discretion to fill the QATS position by internal placement.
In the agency's view, as a matter of discretion, the ATM decided, and had
the right to decide, to fill the position by reassignment and to solicit
interest in the position in-house. Thus, complainant, who was not working
at the Cedar Rapids ATCT was not entitled to consideration for the QATS
position, because she was working at the Cincinnati ATCT at the time.
An employer has the discretion to determine how best to manage its
operations and may make decisions on any basis except a basis that
is unlawful under the discrimination statutes. Furnco Construction
Co. v. Waters, supra; Nix v. WLCY Radio/Rayhall Communications, 738 F.2d
1181 (11th Cir. 1984). In addition, an employer is entitled to make his
own business judgments. The reasonableness of the employer's decision
may of course be probative of whether it is pretext. The
trier of fact must understand that the focus is to be on the employer's
motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d
1003, 1012 n.6 (1st Cir. 1979).
However, in light of the evidence as a whole, the AJ inferred
discriminatory intent on the ATM's part, when he chose to use Internal
Placement. The AJ thus found that the ATM used Internal Placement as
a means to exclude complainant, ignoring her repeated communications
with him about her preference on getting a staff position to advance
in her career, as well as the fact that she was indeed qualified for
a QATS position. The AJ found that the ATM's intent in filling the
position with a male was actualized by the timing of his actions in
offering her the ATCS position and in the filling of the QATS position.
Thus, for example, although the ATM had assured her he would notify her
if the QATS position opened up, he did not do so. The AJ additionally
pointed out that the ATM's animus in blocking complainant from the QATS
position because of her sex was shown by his not having informed her
that her applications were inappropriate, the position was available at
a time when the only candidates were male, his refusal to show her the
position's announcement, his varying and contradictory explanations for
his selection of the Selectee, his biased interest in the Cedar Rapids
male employees as compared with complainant, and his stereotypical
thinking concerning females in the air traffic control field.
Complainant's Request for Damages Resulting from Reprisal
Damages may be awarded for reprisal only if there has been a finding of
reprisal on the merits. It would be inappropriate for the Commission
to address the merits of the reprisal allegation on appeal, since there
is not a complete record on the issue, albeit because the AJ declined to
hear testimony on the matter. See also 29 C.F.R. � 1614.109 (a) (1999)
(regulation in effect at time of AJ's hearing, i.e., March 3, 1999)(where
the AJ determines that the complainant is raising or intends to pursue
issues like or related to those raised in the complaint, but which the
agency has not had an opportunity to address, the AJ shall remand any
such issue for counseling in accordance with 29 C.F.R. � 1614.105 (1999)
(precomplaint counseling)).<2>
The AJ did not remand the reprisal allegation for counseling.
Nevertheless, complainant may file a separate complaint involving her
reprisal allegation. Complainant is advised that if she wishes to pursue,
through the EEO process, her reprisal allegation raised on appeal, she
should initiate contact with an EEO counselor within fifteen days of the
time she receives this decision. The Commission advises the agency that
if complainant seeks EEO counseling regarding the new allegation within
the above fifteen-day period, the date complainant made the reprisal
allegation to the AJ shall be deemed to be the date of the initial EEO
counselor contact, unless she previously contacted an EEO counselor
regarding these matters, in which case the earlier date would serve
as the EEO counselor contact date. Cf. Qatsha v. Department of Navy,
EEOC Request No. 05970201 (January 16, 1998).
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We discern no basis to disturb the AJ's
decision. Therefore, after a careful review of the record, the Commission
REVERSES the agency's FAD and REMANDS this case to the agency and to the
Hearings Unit to take remedial actions in accordance with this decision
and the ORDER below.
ORDER (C0900)
The agency is ordered to take the following remedial actions:
1. Within sixty (60) calendar days of the date this decision becomes
final, complainant shall be offered the position of Quality Assurance
Training Specialist, GS-2152-12, at the Cedar Rapids Air Traffic
Control Tower, Cedar Rapids, Iowa, and her personnel records shall be
retroactively adjusted to reflect her seniority in that position as of
the date, when the position was discriminatorily filled by complainant's
exclusion. The offer shall be made in writing. Complainant shall have
15 days from receipt of the offer within which to accept or decline
the offer. Failure to accept the offer within the 15-day period will
be considered a declination of the offer, unless complainant can show
that circumstances beyond her control prevented a response within the
time limit.
2. The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. The complainant shall cooperate in the agency's
efforts to compute the amount of back pay and benefits due, including
moving expenses to the extent entitled, and shall provide all relevant
information requested by the agency. If there is a dispute regarding the
exact amount of back pay and/or benefits, the agency shall issue a check
to the complainant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
The complainant may petition for enforcement or clarification of the
amount in dispute. The petition for clarification or enforcement must
be filed with the Compliance Officer, at the address referenced in the
statement entitled "Implementation of the Commission's Decision."
3. The issues of compensatory damages and attorney's fees and costs
are REMANDED to the Hearings Unit of the Milwaukee, Wisconsin, District
Office. Thereafter the Administrative Judge
shall issue a decision on these issues in accordance with 29 C.F.R. �
1614.109, and the agency shall issue a final action in accordance with 29
C.F.R. � 1614.110 within forty (40) days of receipt of the Administrative
Judge's decision. The agency shall submit copies of the Administrative
Judge's decision and the final agency action to the Compliance Officer
at the address set forth below.
4. The agency is directed to conduct training for the Air Traffic
Manager, who was found to have discriminated against complainant, when
he did not select her, and shall also conduct training for all other
supervisors, managerial personnel, and personnel department staff at the
Cedar Rapids Air Traffic Control Tower. The agency shall address the Air
Traffic Manager's and the other employees' responsibility with respect to
eliminating sex discrimination in the workplace and all other supervisory
and managerial responsibilities under equal employment opportunity law.
5. The agency shall post a notice in accordance with the paragraph
entitled �Posting Order� below.
6. 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 of the
agency's calculation of back and front pay and other benefits due
complainant, including evidence that the corrective action has been
implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Cedar Rapids Air Traffic
Control facility, Cedar Rapids, Iowa, 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 3, 2001
Date
1 Complainant indicates that while the QATS position would have been
a demotion in grade, it was career enhancing with promotion potential,
as it was a position of higher status than complainant had ever held.
Complainant further points out that she would have received pay retention
plus, after one year, 15 credit points for use in future bids for jobs
up the career ladder. Complainant additionally submits that a staff
position (such as a QATS) is almost always a stepping stone to higher
level management, and that the progression from ATCS to a staff specialist
is the normal career progression for an air traffic controller.
2 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. The Commission's
regulations now allow a complainant to amend a complaint at any time
prior to the conclusion of the investigation to include issues or claims
like or related to those raised in the complaint. Additionally, after
requesting a hearing, complainant may file a motion with the AJ to amend
a complaint to include issues or claims like or related to those raised
in the complaint. 29 C.F.R. � 1614.106(d)(1999).