01982554
09-07-1999
Deborah S. Stein, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration) Agency.
Deborah S. Stein, )
Appellant, )
) Appeal No. 01982554
v. ) Agency No. DOT-6-97-6005
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
(Federal Aviation )
Administration) )
Agency. )
)
DECISION
Appellant filed a timely appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
basis of reprisal (prior EEO activity), and sex (female) in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. Appellant alleges she was discriminated against when:
(1) she was denied official time to prepare her EEO complaint and meet
with the EEO counselor; (2) she was denied consecutive time off to go
house hunting when compared to male employees and 3) she was denied
previously approved prime time annual leave. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as an Air Traffic Control Specialist, at the agency's San Carlos Air
Traffic Control Tower. Appellant alleged that the facility was closing
and being contracted out which required the employees to relocate to
other towers. She requested three days off in July 1996 to go house
hunting for purposes of relocating to coincide with her regular days off.
As part of her leave request she asked the responsible management official
(RMO) to work for her on one of the days. The RMO informed her he would
not be in that day and approved the rest of the time. Thereafter, he
put her on the schedule for overtime for one of her regular days off
allegedly without first telling her. Appellant contends the supervisor
was present at work on the days she had requested and could have worked
for her as he did for other employees, but refused in reprisal for her
filing an EEO complaint and because she is female. Appellant requested
another house hunting day in August 1996, which she contends was never
approved but was approved for another male employee.
Appellant alleged that she requested administrative time during
the month of June 1996 for purposes of preparing her EEO complaint.
She alleged that all of her requests were either denied or unduly delayed.
In addition, she alleged that she requested time in July 1996 to meet
with the EEO counselor which her supervisor denied, thus interfering
with her ability to process her EEO complaint.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a complaint on October 31, 1996.
At the conclusion of the investigation, appellant failed to request
either a final agency decision or a hearing, and thereafter the agency
issued its final decision.
The agency concluded that appellant failed to establish a prima facie
case of reprisal by a preponderance of the evidence, and therefore, it
found no discrimination. Appellant did not raise the issue of gender
as a basis for discrimination until she filed her statement in support
of her appeal, and therefore, the agency did not issue a decision on
gender discrimination.
On appeal, appellant contends that the agency failed to investigate the
issue of emotional distress and her entitlement to compensatory damages.
For this reason, she contends that the complaint should be remanded for
further investigation. Appellant contends that based on the statements
of witnesses, there is evidence that her supervisor's actions against
her constituted sexual harassment in addition to reprisal. She also
contends that relevant leave documents which would have helped to prove
her claims were suspiciously destroyed, thereby warranting sanctions
against the agency.
Reprisal Claim
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), Texas Department of Community Affairs v. Burdine,
450 U.S.248 (1981), United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711,(1983); Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), we find that the appellant has established a prima facie case
of reprisal. She demonstrated that by filing an EEO complaint in 1995,
she had engaged in protected EEO activity, the RMO knew that she had
filed the complaint and she was treated differently in being denied
consecutive days off for house hunting purposes when compared to her
male counterparts.
We find that appellant has failed to demonstrate that more likely than
not, the agency's articulated reasons for its actions are a pretext for
discrimination. As discussed more fully below, the record establishes
that more likely than not, other non-discriminatory factors influenced
the RMO's actions such as the pressure of closing their operation of the
tower and the lack of sufficient staff to fully accommodate the leave
requests of the controllers. In the words of the union representative
the efforts to accommodate the house hunting needs of the controllers was
"very creative".
Appellant contends that every request she made for official time to
prepare her EEO complaint or to meet with the EEO counselor, was denied
or delayed indefinitely by the RMO. After a review of the record
we conclude that it does not fully support her contention. Instead,
the record shows that the days she selected in June 1996 were days when
other employees had scheduled annual leave which presumably would have
left the tower understaffed. There was evidence that the time period of
June 1996 was busier for the RMO in terms of his administrative duties
and paperwork related to the transfer of the facility. This left him
with less time for filling in for absent controllers which appellant did
not dispute. The record further reflects that the RMO offered appellant
compensatory time as provided under EEOC's Management Directive 110 as
a substitute measure. Apparently, appellant did not use compensatory
time and canceled her meeting with the EEO counselor on June 17, 1996
due to the lack of preparation time, but also due to the scheduling of
a meeting regarding the employees' permanent change of station (PCS)on
the same day. There was no evidence that the RMO denied appellant the
time to meet with the EEO counselor on June 17, or was responsible for
scheduling the PCS meeting.
Appellant then requested administrative time to meet with the EEO
counselor on July 2, 1996, and for time on June 17, 1996 after the PCS
meeting. The RMO granted the time on June 17 but deferred the decision
for July 2 because she had requested it on May 24, 1996, more than 30
days in advance. The union contract required that the watch schedule be
approved 28 days in advance of posting. There was no testimony or other
evidence that appellant's request for July 2, 1996 was later denied or
that this reasoning was pretextual. Furthermore, there was no testimony
or evidence that the RMO's suggestion that appellant use compensatory
time because of the staffing difficulties was unreasonable or pretextual.
Appellant contends that the RMO had not approved her consecutive days
off for purposes of house hunting as he had for her male counterparts
and that he refused to work for her as he did for the male employees to
accommodate her official or unofficial needs. The RMO countered that he
had indeed worked for appellant, but he was not always available to fill
in for controllers because he had other duties as the acting manager or
he needed the time off himself. This was corroborated by another air
traffic controller (ATC) who stated that the RMO filled in occasionally
but not on a regular basis. The union representative stated that the
RMO had made clear he was not working for any particular person, but
would put himself on the schedule to allow others to take off. The ATC
also stated that the time period appellant wanted off was a time when
the administrative duties and paperwork increased which required him to
help the RMO to get the work done. He further stated that appellant
had requested time that the employees had been informed would not be
available for taking time off. The record bears out the difficulty in
staffing that the RMO was having, particularly the date he required the
appellant to work overtime to accommodate an employee on sick leave.
To accommodate appellant, the other controllers each agreed to work two
hours of overtime to cover appellant's shift.
Appellant contends that she requested August 9, 1996 for house hunting
which the RMO ignored or failed to approve and later granted to a male
controller. Again, the record established that appellant's request
was made in May long before it could be approved by either management or
the union. In addition, the RMO stated that Appellant did not follow-up
on her request to him and if he granted the time to another controller,
it was because she failed to do so. Appellant failed to address the
RMO's articulated reason for not granting her this time and consequently,
she failed to show that his reason was a pretext for discrimination.
Appellant claims that she was denied prime time annual leave which the
RMO denies. Appellant fails to state the date of the prime time annual
leave in question and it is unclear from her affidavit whether the time
concerned one day or a entire two week period. Therefore, without more
specificity we are unable to sustain an analysis of this issue.
We note at this juncture that appellant alleged that the agency
intentionally destroyed time cards and leave memoranda which would have
helped her to prove her claim and that the RMO and the record keeper
should have known to retain them pursuant to an ongoing investigation.
Although we are concerned with the short retention time for these records
we cannot accurately judge the circumstances of the purging without
knowing the written retention policy in place at the towers. In addition,
the record contains some memoranda confirming appellant's leave requests
and the RMO's responses during the relevant time periods. Moreover,
the RMO does not deny that he may have been present on days that he told
appellant he could not cover for her which disposes of the need to see
his leave records. We decline to hold the RMO individually responsible
for the purging of leave records because there is no evidence that he
possessed the records or that he directed a third party to purge them.
Based on the facts outlined above, we are not persuaded that the RMO
acted in reprisal for appellant's EEO activity or that the agency's
articulated reasons are a pretext for discrimination.
Sexual Harassment
The appellant has failed to establish a prima facie case of sexual
harassment because she has not shown that she was subjected to unwelcome
conduct of a sexual nature. 29 C.F.R.�1604.11(a); See e.g., Teresa
McClellan v. Department of Defense, EEOC No. 01983023 (March 2, 1999).
She has, however, presented a prima facie case of discrimination based
on gender because appellant established that the RMO's scheduling of
her house hunting was different from her male counterparts.
As discussed above, however, we find that appellant failed to show that
the agency's reasons for taking the actions regarding her time were
more likely than not a pretext for discrimination. Although there was
testimony that the RMO was openly hostile to appellant and that he had
stated "she's a woman, she's on the rag", there was at least an equal
amount of testimony that the RMO did not treat appellant differently.
There was also testimony from other air traffic controllers suggesting
other non-discriminatory reasons for the RMO's actions such as appellant's
tendency to stretch the rules as far as she could, the existence of a
professional dispute between the RMO and appellant's husband, as well
as the factors discussed above. Taking the evidence as a whole, we do
not find that the RMO's single crude remark constitutes enough evidence
to warrant a conclusion that his actions were discriminatory based
on her gender or amounted to sexual harassment. See e.g. Downes v.
Federal Aviation Administration, 775 F.2d 288, 293 (D.C. Cir. 1985),
see also, Samuel T. Cobb, III v. Robert E. Rubin, Secretary, Department
of the Treasury, 05970077, March 13, 1997.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final decision. Because we conclude that there was no discrimination,
there is no need to remand the case for a supplemental investigation of
the issue of compensatory damages.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
9/7/99
DATE Carlton Hadden, Acting Director
Office of Federal Operations