01A11498
06-12-2002
Becky A. Kohut, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Becky A. Kohut v. Department of Transportation
01A11498
June 12, 2002
.
Becky A. Kohut,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A11498
Agency No. 3-00-3051
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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. For the following reasons, the Commission AFFIRM
the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Air Traffic Control Specialist, FG-12, at the Dekalb-Peachtree
Airport in Chamble, Georgia. Complainant sought EEO counseling and
subsequently filed a formal complaint on February 22, 2000. Therein,
complainant alleged that she was discriminated against on the basis
of race (Caucasian) when she was decertified and required to undergo
refresher training as a result of an operational error that occurred on
November 7, 1999, while a Black employee who was working in the tower
with her was not decertified.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant established a prima
facie case of race discrimination, because complainant was decertified
and required to attend refresher training while a Black employee was
not decertified and was not required to attend refresher training.
The agency also concluded that management articulated legitimate and
nondiscriminatory reasons for its actions. Specifically, the agency
noted that complainant was decertified and required to attend refresher
training because: 1) she used less than sound judgment in giving a pilot
the �go around� control instruction in an imminent situation; and 2)
during the course of the aircraft accident investigation, performance
deficiencies related to complainant were noted. The agency alleged that
the Federal Aviation Administration (FAA) regulations required refresher
training if during the course of an aircraft accident investigation
some performance deficiency is noted. The agency further noted that
the Black comparator employee had no performance deficiencies.
On appeal, complainant contends that is not true that her �go around�
instruction to the pilot resulted in the fatal plane crash, because
the aircraft came back around after the go around and tried to land on
another runway. Complainant contends that the aircraft could not land
on this runway because the ground controller allowed fire vehicles to
cross an active runway and they were located on the runway the aircraft
was attempting to land on. Complainant also contends that it is not
true that the Black comparator employee had no performance deficiencies,
because she allowed vehicular traffic to cross an active runway without
coordination. Complainant further contends that even if giving the �go
around� instruction was not using sound judgment, she was instructed to
give it by her coordinator.
ANALYSIS AND FINDINGS
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); 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). 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
Corp. v. Green, 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).
Although the Commission finds that complainant properly established a
prima facie case of race discrimination, we also find 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 complainant failed to establish
that she had no performance deficiencies. The record reveals that on
November 7, 1999, an aircraft reported inbound with smoke in the cockpit
and possible gear problems and that complainant issued a go around
control instruction to the aircraft. The record also reveals that the
investigation of the aircraft discovered that complainant failed to
exercise sound judgment in sending an aircraft around in an imminent
situation, as well as other performances deficiencies by complainant.
We concluded that complainant failed to establish that her race, rather
than these performance deficiencies, motivated the agency's action.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, 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
June 12, 2002
__________________
Date