01A14189
11-19-2002
Kathleen Gough Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Kathleen Gough v. Department of Transportation (Federal Aviation
Administration)
01A14189
November 19, 2002
.
Kathleen Gough
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 01A14189
Agency No. 1-00-1062R
DECISION
INTRODUCTION
This appeal involves an equal employment opportunity (�EEO�) complaint
filed by Kathleen Gough (�complainant�) against her employer, the
Department of Transportation (Federal Aviation Administration) (�the
agency�). Complainant works for the agency as an Air Traffic Control
Specialist at the Atlantic City International Airport. For years she
has worked a part-time schedule so that she can be at home more to
care for her three children. On or around October 27, 1997, however,
her male supervisor (�Supervisor�) told her that beginning in January
of 1998, she would have to return to working a full-time schedule.
Supervisor essentially told complainant this was because two other (male)
co-workers were being reassigned out of complainant's work facility,
and a staff shortage would therefore result.
Complainant asked the agency to reconsider, and to allow her to remain
part-time. In a letter dated December 4, 1997, Supervisor informed
complainant that her request to remain on part-time status was denied.
Claiming this agency action was adverse treatment based on her sex
(i.e., that Supervisor provided preferential treatment in staffing and
scheduling to his male subordinates and would not have subjected them
to such a schedule change), complainant sought agency EEO counseling.
She eventually filed a formal EEO complaint challenging the order
returning her to full-time duty (basically alleging that Supervisor's
order constituted gender-based disparate treatment violating Title VII
of the Civil Rights Act of 1964 (�Title VII�), as amended, 42 U.S.C. �
2000e et seq.).
The agency ultimately ruled on the merits of complainant's complaint
in a final agency decision (�FAD�) issued on or around May 31, 2001.
In this FAD, the agency concluded that complainant had not proven
that any illegal employment discrimination had occurred. Complainant
promptly filed a notice challenging this FAD with us, the United States
Equal Employment Opportunity Commission (�EEOC� or �this Commission�).
We accepted complainant's notice and docketed it as this appeal.
We are now issuing this decision under the authority granted to us by
29 C.F.R. � 1614.405(a). Under this same regulation, we must review
the FAD in question de novo (or �anew�). See 29 C.F.R. � 1614.405(a).
This means that in deciding this case, we can accept (if accurate)
or reject (if erroneous) the agency's factual and legal conclusions.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (rev. Nov. 9, 1999) (�EEO MD-110�), at 9-15. Accordingly, we have
carefully reviewed the entire record before us in our attempt to discern
whether a preponderance of the evidence warrants a rejection of the
agency's determinations � or supports any finding of illegal employment
discrimination here. See 29 C.F.R. � 1614.405(a). We conclude that it
does not.
Complainant's complaint raises a claim of Title VII-proscribed sex-based
disparate treatment. With claims of this kind, where there is no direct
evidence of any illegal motive for the agency actions in question,
an evidentiary �burden of production� is placed initially on the
complainant to put forth a prima facie case of unlawful discrimination.
The complainant may do so by presenting facts which, if unexplained,
reasonably give rise to an inference of discrimination (i.e., that a
prohibited consideration was a factor in the relevant adverse employment
action(s)). If complainant successfully establishes such a prima facie
case, the evidentiary burden of production then shifts to the agency to
articulate legitimate, non-discriminatory reasons for its ostensibly
objectionable conduct. If and when the agency offers such a lawful
explanation, the evidentiary burden of production shifts (one last time)
back to the complainant to show that the explanation offered is but
a pretext for the agency's true, prohibited discriminatory intent.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978); Board of Trustees of
Keene State College v. Sweeney, 439 U.S. 24 (1978); 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); St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993); and Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000).
Notwithstanding these shifting burdens of production, however, in any
Title VII claim of disparate treatment, the complainant at all times
carries the ultimate burden of persuading the finder of fact � by a
preponderance of (albeit circumstantial) evidence � that he or she was a
victim of intentional discrimination. See, e.g., Sweeney, 439 U.S. at 29
(Stevens, J., dissenting); Burdine, 450 U.S. at 256; Aikens, 460 U.S. at
716; St. Mary's Honor Center, 509 U.S. at 507, 511, 518; and Reeves,
530 U.S. at 143. Complainant has not met this burden here with respect
to her sex discrimination claim. Even if we assume for argument's sake
that she satisfied her initial obligation to put forth a prima facie
case of sex-based disparate treatment, the agency responded accordingly.
That is, and as the agency explained in its FAD, the agency provided a
legitimate, non-discriminatory reason for requiring complainant to return
to full-time status (namely, that two other employees had recently been
transferred from complainant's facility and management needed complainant
to work more hours to ameliorate the resulting staffing crunch). In our
view, complainant failed to prove that this explanation was a mask for
a management gender bias.
At least two witnesses claimed that Supervisor had a sexist attitude
about women in the workplace. Nevertheless, we did not find anything
persuasive in the record linking Supervisor's possible bias against
women to the employment action at issue here. (For example, several
other witnesses testified that gender bias had nothing whatever to do
with Supervisor's decision.) Thus, the preponderance of the evidence
simply does not support the notion that complainant was ordered to
return to full-time duty because she is a woman.<1> Cf. St. Mary's
Honor Center, 509 U.S. at 515, 519 (holding that �a reason cannot be
proved to be �a pretext for discrimination' unless it is shown both
that the real reason was false, and that discrimination was the real
reason� for the defendant's employment action, and noting that �[i]t
is not enough . . . to disbelieve the employer; the fact finder must
believe the plaintiff's explanation of intentional discrimination�).
Therefore, we conclude that the FAD in question should be affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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; see also EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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)
Complainant has the right to file a civil action in an appropriate United
States District Court within ninety (90) calendar days from the date that
complainant receives this decision. If complainant files a civil action,
complainant 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 complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility or
department in which complainant works. If complainant files a request
to reconsider and also files a civil action, filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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.; and 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 complainant's 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 entitled
�Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 19, 2002
__________________
Date
1In complainant's appeal submission, she does claim that �on paper, this
case is about part-time, but it is so much more than that. [Supervisor]
never missed an opportunity to treat me differently, treat me unfairly,
and to try to create an extremely hostile work environment for me to
work in. He made our relationship . . . extremely adversarial and made
everything personal.� Complainant's Appeal Brief (July 18, 2001) at 8;
cf. id. at 5 (where complainant claims that certain male employees are
allowed to bring their children into the work place, while complainant,
specifically, is not). If this sort of disparity in treatment in
still occurring or complainant believes she is enduring a hostile work
environment � and if complainant believes the disparate treatment or
hostile work environment exists because she is a woman � she should seek
EEO counseling anew for these problems. However, because these issues
were not the ones the agency accepted for investigation, we do not have
ample information to enable us to address them here and now.