01a43488
03-14-2005
Patrick Maney, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Patrick Maney v. Department of Transportation
01A43488
March 14, 2005
.
Patrick Maney,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A43488
Agency No. 5-02-5079
Hearing No. 310-2003-05354X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of 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 order.
The record reveals that complainant, an Aviation Safety Inspector at
the agency's Dallas Flight Standards Field Office facility, filed a
formal EEO complaint dated August 22, 2002, alleging that the agency
discriminated against him on the basis of his age (D.O.B. 2/9/43) when
his probationary appointment was terminated.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of age discrimination because there were other employees who were within
complainant's protected class, who had been recently hired and whose
probationary appointments had not been terminated. More specifically,
the AJ found evidence that there was at least one employee who was older
than complainant, and five others who were approximately the same age, who
worked in the same specialty as complainant. Moreover, the AJ found that
there was one employee who entered on duty the same year as complainant,
who was just one year younger than complainant and who was not terminated
from his employment. Based on this evidence the AJ found that complainant
failed to establish there was at least an inference of discrimination.
Even assuming that the evidence supported a prima facie case of age
discrimination, the AJ found that complainant failed to show the agency's
reason for terminating his employment was a pretext. In particular,
the agency stated that complainant failed to demonstrate the ability
to conduct certification in multi-engine aircraft in order for him to
do his job as an safety inspector. According to the AJ's findings,
complainant failed to show that this reason was not believable or
was untrue. The agency's final order implemented the AJ's decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order.
After a careful review of the record, the Commission finds that the
AJ's grant of summary judgment was appropriate, as no genuine dispute
of material fact exists. Complainant stated that once he learned the
agency was not satisfied with his inspection capabilities, he sought an
opinion from an outside source. He asserted that he hired a certified
flight instructor who told him he should meet the agency's requirements.
However, this evidence was not enough to create a genuine dispute
of fact surrounding the agency's conclusion that complainant did not
demonstrate the necessary proficiencies. That is, it was not disputed
that the agency's own testing of complainant's skills showed that he
was not proficient in certain areas and needed more training. Thus,
even construing the evidence in the light most favorable to complainant,
he failed to come forward with evidence that the agency's termination of
his employment was motivated by discriminatory animus toward complainant's
age.
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
March 14, 2005
__________________
Date