Patrick Maney, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMar 14, 2005
01a43488 (E.E.O.C. Mar. 14, 2005)

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