01a51837
12-02-2005
Alice Kay Zang, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Alice Kay Zang v. Department of Transportation
01A51837
December 2, 2005
.
Alice Kay Zang,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A51837
Agency No. 3-04-3056
DECISION
Complainant initiated contact with an EEO Counselor on April 20, 2004.
On June 9, 2004, complainant filed a formal EEO complaint in which she
claimed that the agency discriminated against her on the basis of her age
(dob 7/21/51) when:
1. Subsequent to the approval of her hardship transfer application on
December 9, 2002, the hardship transfer application was sent to only
one of the facilities that complainant requested.
2. After complainant's hardship transfer application was approved on
December 9, 2002, management overstaffed the Sarasota facility with
young people making it impossible for complainant to obtain a position.
The record reveals that complainant has been employed by the agency as
an Air Traffic Control Specialist, GS-2152-14, at the agency's Air Route
Traffic Control Center in Miami, Florida. On June 10, 2002, complainant
applied for a hardship transfer to the agency's facilities in Fort Myers,
Tampa, or Sarasota. The agency approved complainant's request for a
hardship transfer on December 9, 2002. The agency memorandum notifying
complainant that her request had been approved stated that her transfer
request was being forwarded to the Air Traffic Manager at the Sarasota
facility for consideration. The memorandum made no reference to either
the facility in Fort Myers or the facility in Tampa. The record reveals
that in e-mail correspondence dated December 2, 2002, to the agency,
the Union's Southern Region Vice President only supported sending
complainant's application to the Sarasota facility as he expressly
rejected both the Tampa and Fort Myers facilities. On June 3, 2004,
complainant requested and ultimately received an eighteen-month hardship
extension. Complaint stated that in addition to the aforementioned
agency facilities, she also wished to be considered for a position at
the Orlando facility.
The complaint was accepted for investigation. Subsequent to the
completion of the agency investigation, the agency notified complainant
of her right to request either a hearing and decision by an EEOC
Administrative Judge or an immediate final action by the agency.
Complainant requested a final action. The agency thereafter
issued a final action wherein it dismissed claim (1) pursuant to
29 C.F.R.�1614.107(a)(2) on the grounds that complainant failed to
initiate contact with an EEO Counselor in a timely manner. The agency
determined that complainant was aware on December 9, 2002, of management's
decision to forward her hardship transfer application only to the Sarasota
facility. The agency determined that complainant did not initiate contact
with an EEO Counselor until April 20, 2004, after the expiration of the
45-day limitation period for contacting an EEO Counselor. With regard
to claim (2), the agency determined that complainant failed to set forth
a prima facie case of age discrimination because complainant provided
no evidence that a younger employee was placed at the Sarasota facility
under a hardship transfer during the relevant time period. The agency
noted that even if complainant had established a prima facie case,
it articulated a legitimate, nondiscriminatory reason for its action.
According to the agency, the Sarasota facility was overstaffed and no
employees had been assigned there since June 2002. The agency determined
that complainant failed to show by a preponderance of the evidence that
but for her age, she would have received a hardship transfer to the
Sarasota facility.
On appeal, complainant contends that it was not until during the
investigation of the instant complaint, on or about August 20, 2004, that
she realized that her hardship transfer request had not been referred
to the Fort Myers, Tampa and Orlando facilities. Complainant states
that the agency's memorandum dated December 9, 2002, did not inform her
that her transfer request was not being sent to the Tampa and Fort Myers
facilities. According to complainant, she assumed that the Sarasota
facility was the only facility mentioned in the memorandum because she
indicated that Sarasota was her first choice.
The agency dismissed the first claim of the complaint on the grounds
that complainant failed to initiate contact with an EEO Counselor in a
timely manner. The agency determined that complainant's EEO contact on
April 20, 2004, was after the expiration of the 45-day time limit for
contacting an EEO Counselor. The Commission agrees with the agency.
Complainant's contact of an EEO Counselor on April 20, 2004, was more
than 45 days after she was informed by the agency memorandum dated
December 9, 2002, that her hardship transfer application was being
transferred for consideration to the Sarasota facility. In light of the
fact that this memorandum did not mention that the hardship transfer
application was being sent to the Tampa and Fort Myers facilities, we
find that complainant should have realized that the Tampa and Fort Myers
facilities would not receive her application. Therefore, Complainant
should have contacted an EEO Counselor within 45 days of her receipt of
this memorandum. We find that complainant has not submitted sufficient
argument or evidence to justify an extension of the 45-day limitation
period. Accordingly, the agency's decision dismissing the first claim of
complainant's complaint was proper pursuant to 29 C.F.R. � 1614.107(a)(2).
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
See also 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). For complainant to prevail, she 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 consideration 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). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).
This order of analysis in discrimination cases, in which the first step
normally consists of determining the existence of a prima facie case,
need not be followed in all cases. Where the agency has articulated a
legitimate, nondiscriminatory reason for the personnel action at issue,
the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
For purposes of analysis, we will assume, arguendo, that complainant has
established a prima facie case of discrimination on the basis of age. The
agency stated that complainant has not received a transfer to the Sarasota
facility because the facility is overstaffed. Further, the agency stated
that there have been no placements at the Sarasota facility since June
2002. We find that the agency articulated a legitimate, nondiscriminatory
reason for not transferring complainant to the Sarasota facility.
We find that complainant failed to refute the agency's stated reason for
not transferring her to the Sarasota facility. Complainant alleged that
the agency overstaffed the Sarasota facility with younger individuals
in order to prevent her from obtaining a position. Complaint claimed
that two individuals were assigned to the Sarasota facility shortly
before her transfer was approved. However, the record does not refute
the agency's position that there had been no placements at the Sarasota
facility since June 2002, approximately six months before complainant's
hardship transfer request was approved. We find that complainant has
not shown, by a preponderance of the evidence, that the agency's stated
reason for not transferring her to the Sarasota facility was pretext
intended to mask discriminatory intent. Therefore, we find that the
agency properly issued a decision finding no discrimination for claim (2).
The agency's final action is AFFIRMED.
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
December 2, 2005
__________________
Date