01972804
08-05-1999
Samuel L. Tyson, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Samuel L. Tyson v. Department of Transportation
01972804
August 5, 1999
Samuel L. Tyson, )
Appellant, )
)
v. )
) Appeal No. 01972804
Rodney E. Slater, ) Agency No. 96-0006
Secretary, )
Department of Transportation, )
(Federal Aviation Administration), )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final agency
decision ("FAD") concerning his complaint of employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, 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. In his complaint,
appellant alleged that he was discriminated against on the bases of
race (African-American), reprisal (prior EEO activity), and age (57),
when: (1) he was reassigned from his position of Area Manager in Charge
("AMIC"), GM-15, to a lower graded and status position; (2) management
attempted to coerce him into retirement by threatening to reassign him;
(3) his AMIC position was reassigned to a white co-worker during the
period he was undergoing a performance improvement plan ("PIP"); and (4)
he was assigned to a different position after his completion of the PIP.
This appeal is accepted in accordance with the provisions of EEOC Order
No. 960.001. For the following reasons, the agency's decision is AFFIRMED
as CLARIFIED.
BACKGROUND
The record reveals that appellant, employed at the agency's Miami Air
Traffic Control Center, filed formal EEO complaints with the agency
on September 20, 1995 and December 8, 1995, alleging discrimination as
referenced above. The agency accepted the complaints for processing,
and at the conclusion of the investigation, appellant was granted thirty
days to request a hearing before an EEOC Administrative Judge or an
immediate FAD. Appellant requested an immediate FAD which the agency
issued on January 13, 1997, finding no discrimination.
As to Allegation (1), the FAD concluded that appellant failed to establish
a prima facie case of age or reprisal discrimination because evidence
showed that five similarly situated AMICs, outside appellant's protected
classes, were similarly reassigned.
The FAD next concluded that regarding Allegation (2), appellant
established prima facie cases of age and race discrimination when he
demonstrated that no other similarly situated AMIC outside his protected
classes received similar retirement threats. The FAD then concluded
that the agency articulated legitimate, nondiscriminatory reasons for its
actions, namely, that the Air Traffic Manager ("ATM") stated that while
appellant's retirement plans were discussed during their initial meeting
regarding reassignment, it played no part in the reassignment decision
which was based on safety-related performance deficiency. The FAD further
found that the evidence did not establish that more likely than not, the
agency's articulated reasons were a pretext for unlawful discrimination.
Regarding Allegation (3), the FAD concluded that appellant established
prima facie cases of age and race discrimination when he demonstrated
that similarly situated employees not in his protected classes were not
similarly replaced while completing a PIP. The FAD then concluded that
the agency articulated legitimate, nondiscriminatory reasons for its
actions, namely, that the ATM stated that appellant was reassigned from
his AMIC position because of performance problems and was returned to an
AMIC position once he completed his PIP. The FAD found that the evidence
did not establish that more likely than not, the agency's articulated
reasons were a pretext for unlawful discrimination.
Finally, the FAD dismissed Allegation (4) because it determined that
appellant's grievance complaint concerning his PIP was not a protected
activity under EEOC Regulation 29 C.F.R. �1614.101(b). Therefore,
the FAD concluded that appellant could not establish a case of reprisal
without showing prior protected EEO activity.
On appeal, appellant restates his allegations previously presented in
his complaint. The agency responds by restating the position it took
in its FAD, and requests that we affirm its FAD.
ANALYSIS
Initially, we find that the agency's dismissal of Allegation (4) was
improper because appellant had engaged in protected EEO activity prior
to the filing of his second complaint. Appellant filed his first EEO
complaint on September 20, 1995 regarding the first three allegations.
He filed his second complaint concerning his subsequent reassignment
to a different AMIC position (Allegation 4) on December 8, 1995.
He was informed of his subsequent reassignment on October 10, 1995, one
month after filing his first complaint. As a result, we find that the
agency erred in not rendered a decision on appellant's reprisal claim
(Allegation 4). However, after reviewing the evidence, the Commission
finds that appellant failed to establish that his reassignment to a
different AMIC position was in reprisal for his prior EEO activity.
While appellant was not returned to the exact same AMIC position he
previously held, he was reassigned to another AMIC position. We find
that appellant failed to provide adequate explanation of how his new
position was less favorable to his previous position.
As for appellant's remaining allegations, after a careful review
of the record, based on McDonnell Douglas v. Green, 411 U.S. 792
(1973), Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979), and Hochstadt
v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases), the Commission finds that appellant failed
to present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination. We further
find that appellant did not present sufficient credible evidence to
show that the agency was motivated by anything other than his documented
performance deficiency. Therefore, after a careful review of the record,
including appellant'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 (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
August 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations