01982030
07-19-2001
Steven V. Perez, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Steven V. Perez v. Department of Transportation
01982030
July 19, 2001
.
Steven V. Perez,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01982030
Agency No. 4-96-088
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning 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., and 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 alleged that he
was discriminated against on the bases of age (DOB 7/31/46) and reprisal
(prior Title VII protected EEO activity) when:
beginning in or around November 1995, and continuing, his performance
has been scrutinized, and he has been subjected to higher performance
standards than coworkers;
on or about February 2, 1996, he was accused by his manager of abusing
sick leave and taking an �early shove�<1>; and
on or about March 1, 1996, a supervisor used paint near his work
area even though complainant had previously complained that the fumes
aggravated his sinus problems.
The record reveals that during the relevant time, complainant was employed
as an Air Traffic Control Specialist at the agency's Traverse City Air
Traffic Control Tower. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on April 24, 1996. At the conclusion of the investigation,
complainant was informed of his right to request a hearing before an
EEOC Administrative Judge or alternatively, to receive a final decision
by the agency. By letter dated October 24, 1996, complainant requested
a hearing before an EEOC Administrative Judge. However, by letter
dated September 29, 1997, complainant withdrew his request and instead
requested a final agency decision. By letter dated October 14, 1997,
the EEOC Detroit District Office remanded the complaint back to the
agency, which then issued the FAD that is the subject of this appeal.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of either age discrimination or reprisal discrimination.
The complainant makes no new contentions on appeal. The agency requests
that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d
292, 310 (5th Cir. 1981); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to reprisal cases), the Commission
agrees with the agency that complainant failed to establish a prima
facie case of either age or reprisal discrimination because complainant
did not present evidence that indicated, more likely than not, that the
above-stated issues were the result of his age or prior EEO activity.
In reaching this conclusion, we note that a very thorough investigation by
the agency revealed no corroborating witnesses or comparators. Further,
the protected activity complainant engaged in was too remote in time
to be considered a tenable causal link. The management actions and his
protected activity were almost two years apart.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that the two comparators complainant indicated were not held
to as high a standard as he was both indicated that they experienced
the same level of supervision as complainant did. These comparators
also indicated that they had never observed the kind of high scrutiny
for complainant alone, as he alleges. Moreover, the agency stated that
complainant was advised as to the policies regarding leaving the tower
while still on the clock, but he was not formally reprimanded or punished.
Finally, the painting of a restroom was simply a matter of maintenance
and had nothing to do with complainant, his age or his prior activity.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
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 (S0900)
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. 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 (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
July 19, 2001
__________________
Date
1 The term �early shove� refers to leaving a shift early.