03A30058
08-19-2003
Jimmy L. Szajkovics, Petitioner, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Jimmy L. Szajkovics v. Department of Transportation
03A30058
August 19, 2003
.
Jimmy L. Szajkovics,
Petitioner,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Petition No. 03A30058
MSPB No. CH-0752-01-0046-B1
DECISION
On July 14, 2003, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning his
claim of discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Petitioner, an Aviation Safety Inspector at the agency's Federal Aviation
Administration's Flight Standards District Office, Milwaukee, Wisconsin
facility, alleged that he was discriminated against on the basis of age
(D.O.B. May 27, 1942) when he was suspended for 60 days.
Background
In his appeal to the Commission, petitioner has not disputed the following
facts. On August 26, 1998, petitioner received the first of two anonymous
telephone calls inquiring into the flight qualifications of X, a prominent
local aviator and president of an aviation company. In response to these
calls, rather than report the matter to the appropriate individuals,
petitioner decided to investigate the matter himself, even though his
job duties did not include investigation. His investigations revealed
that X did not have a pilot's licence. Petitioner contacted X and
informed him of his findings. After initially assuring petitioner that
he did hold appropriate documentation allowing him to fly aircraft,
but repeatedly failing to produce such documentation, X finally admitted
that he did not have a pilot's licence, explaining that he had previously
been certified as a pilot in the military and that he mistakenly thought
that his military authorization had been converted to civilian use.
Rather than tell X that the agency would investigate whether he had
been flying without a license, petitioner advised X not to fly until he
had obtained a license. Petitioner further advised X to take a flight
competency check. X asked petitioner to administer the test himself
in order to protect X's privacy. While petitioner is qualified to
administer such checks, he does not perform them during the normal course
of his duties. Nevertheless, he agreed to make an exception in X's case.
Petitioner cancelled X's first flight check due to bad weather. On the
date of the rescheduled flight check, X called to say his children were
in the hospital. X never called to reschedule the flight check, and
never obtained a pilot's licence. Petitioner made a non-standard entry
for X's aviation company in the agency flight log book that obscured
the fact that X was the individual being administered the flight check.
Petitioner's supervisor (RMO: age unknown) noticed the unusual entry
and asked him about it. After some initial reluctance, petitioner
told RMO that he was going to administer the flight check to X and
that X did not have a pilot's licence. Petitioner did not say that X
had flown without a licence. RMO immediately began an investigation
into X's flight activities. Following the investigation, X signed a
�Declaration and Settlement Agreement� on March 22, 1999, admitting to
operating ten flights as pilot-in-command without a license and carrying
a passenger on at least one of these flights. As a result, X was issued
a civil penalty of $2,200.00. Because of petitioner's failure to take
appropriate action after learning of potential violations of agency
regulations, RMO suspended him for sixty days, effective August 15, 1999.
On October 16, 2000, petitioner filed a mixed case appeal with
the MSPB. After a hearing, the Administrative Judge found, inter
alia, that petitioner failed to identify otherwise similarly situated
individuals outside of his protected class who were treated differently.
The Administrative Judge further found that the agency articulated a
legitimate reason for disciplining the petitioner. The Board denied
petitioner's petition for review. In the instant petition for review of
the MSPB decision, petitioner contends that the severity of the agency
penalty was an effort to force him to retire. He further contends that
�the suggestion was made� that if he considered retirement, he �might
be able to recover some of the [sixty] days without pay and expunge
[his] record,� but that �none of these [agency] sources would reaffirm
this in writing.� Petitioner maintains that the charge against him is
not on the list of penalties in the agency handbook and that no other
agency inspector had ever been charged with such a claim. Finally,
petitioner states that he has never before been disciplined for any
cause and that RMO, who is fifteen years younger than himself, wanted
him �out of the office.�
Analysis and Findings
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). A petitioner 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, 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 petitioner 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).
In order to establish a prima facie case, a petitioner may show that
he is a member of a protected class, that he was subjected to adverse
treatment, and that he was treated differently than otherwise similarly
situated employees outside of the protected class. See Potter v. Goodwill
Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975). The prima facie
inquiry may be dispensed with in this case, however, since the agency
has articulated a legitimate and nondiscriminatory reason for issuing the
sixty-day suspension, namely, that petitioner failed to take appropriate
action after learning of potential violations of agency regulations.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983). The burden thus returns to the petitioner 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;
Hicks, 509 U.S. 502.
The Commission finds that petitioner failed to meet his burden of
presenting evidence demonstrating that more likely than not, the agency's
articulated reason for its action was a pretext for discrimination.
While the discipline may appear to be harsh, petitioner has presented no
evidence that such discipline was based on his age. He has shown that
RMO is fifteen years younger than himself, but petitioner has offered
no evidence to support his allegations that agency officials indicated
that the discipline would be decreased or revoked altogether if he agreed
to retire. Nor has he shown that other employees who engaged in equally
egregious conduct, but who were younger than he, received more lenient
treatment, or that RMO or other agency officials displayed any animus
against older employees.
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to concur with the final decision
of the MSPB finding no discrimination. The Commission finds that the
MSPB's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
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
August 19, 2003
__________________
Date