Edward L. Majors, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionOct 20, 2003
01A25025 (E.E.O.C. Oct. 20, 2003)

01A25025

10-20-2003

Edward L. Majors, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.


Edward L. Majors v. Department of Transportation

01A25025

October 20, 2003

.

Edward L. Majors,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

Agency.

Appeal No. 01A25025

Agency No. 3013039

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 Atlanta Air Traffic

Control Tower (ATCT) facility. Complainant sought EEO counseling and

subsequently filed a formal complaint on March 22, 2001, alleging that

he was discriminated against on the bases of age (D.O.B. 8/17/52))

and reprisal for prior EEO activity when the agency subjected him to

a hostile environment and caused his training to be terminated without

just cause and contrary to the agency's Training Orders.<1>

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.

In its FAD, the agency concluded that complainant failed to show that

the agency's reasons for terminating his training were a pretext for

unlawful discrimination or reprisal.

On appeal, complainant contends that the agency's decision is an error

and that the entire training was conducted in bad faith with no intention

of ever certifying him for work as an Air Traffic Control Specialist

in Atlanta. The agency requests that we affirm its FAD.

The Commission finds that complainant properly established a prima facie

case of age discrimination and reprisal. In other words, the complainant

met the initial hurdle, but we also find that complainant failed to

present evidence sufficient to show that the agency's articulated reasons

for its actions were a pretext for discrimination and reprisal. In

reaching this conclusion, we note that under the terms of the settlement

agreement, the complainant was to be given the opportunity to train.

The complainant acknowledged that he had made numerous mistakes, had not

adapted well during the training and did not do well in terms of speed and

efficiency. The record shows that the position was a very demanding one

and that the complainant did not meet Performance Expectation Number 3.

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

October 20, 2003

__________________

Date

1 The complainant alleged that the agency breached a settlement agreement

and sought to have the underlying claim reinstated. The EEOC determined

that the breach allegations presented new allegations; and those

allegations are the subject of this appeal.