01a13758
08-19-2002
Bruce Woodham, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Bruce Woodham v. Department of Transportation
01A13758
8/19/02
.
Bruce Woodham,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A13758
Agency No. 2-00-2081
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Air Traffic Control Specialist at the agency's Washington,
D.C. facility. Complainant sought EEO counseling and subsequently filed a
formal complaint on February 14, 2000, alleging that he was discriminated
against on the bases of race (African-American), sex (male), and age
(age 53 at the time) when he was removed as the Air Traffic Procedures
(ATP) Representative for the Transponder Landing System (TLS).
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. Complainant
requested that the agency issue a final decision.
The record reveals that as the agency's Air Traffic Procedures
Representative to the Transponder Landing System Program, complainant
was tasked with formulating test procedures, processes and conducting
briefings with TLS Team Representatives, which included the National
Air Traffic Controllers Association (Union). Following a briefing with
the Union on or about August 17, 1999, the Union notified complainant's
supervisor via e-mail that complainant had violated a Memorandum of
Understanding. In response to the e-mail, complainant sent a letter
to the Union demanding an apology for the allegation. Thereafter,
the Union advised that complainant's continued participation as ATP
Representative would be "detrimental" to the TLS program.
In response to the final e-mail, complainant alleges that his supervisor
removed him as ATP Representative. Complainant's first and second
level supervisor deny this, and averred that they would have supported
complainant if he wanted to remain as ATP Representative, but that
complainant believed it would be best if he stepped down.
Complainant was replaced as ATP Representative with a younger, Caucasian
female. This complaint followed.
In its FAD, the agency concluded that complainant established that
he was replaced as ATP Representative by an individual outside of his
protected class, but failed to establish he suffered an adverse action.
In that regard, the agency concluded that complainant was not removed
as ATP Representative, but stepped down voluntarily. Moreover, the
agency found that even if complainant was pressured to leave, he failed
to establish this was done because of a prohibited motive.
On appeal, complainant contends that the agency failed to timely conduct
an investigation, and failed to timely issue a final decision. The agency
requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); and 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) the Commission agrees with the agency that
complainant failed to establish a prima facie case of discrimination
because he failed to establish that he was removed from the TLS Program.
The preponderance of the evidence reveals complainant voluntarily stepped
down as ATP Representative.
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 the preponderance of the evidence reveals complainant stepped
down as ATP Representative because of a conflict that existed between
himself and the Union. Indeed, complainant averred he was removed due
to a threat from the Union. Even if complainant was removed, or was
pressured to leave, he failed to establish that this was done because
of his race, gender, or age. Complainant alleged that his supervisor,
who initially selected complainant as ATP Representative, was also
responsible for discriminating against him by allegedly removing him
from the Program. Even if complainant was removed, such a scenario
suggests that a factor other than race, gender or age, was involved in
the decision. Complainant did not present evidence, other than his own
assertions, that his supervisor removed him from the Program because of a
discriminatory motive. Although the record established complainant was
a sucessful plaintiff on a prior discrimination complaint, he failed to
establish that the individuals involved in the instant complaint were
responsible for the previous discrimination.
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
8/19/02
Date