Sherry L. Pierce, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.

Equal Employment Opportunity CommissionJun 26, 2001
01980688 (E.E.O.C. Jun. 26, 2001)

01980688

06-26-2001

Sherry L. Pierce, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.


Sherry L. Pierce v. Department of Transportation

01980688

June 26, 2001

.

Sherry L. Pierce,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

(Federal Aviation Administration),

Agency.

Appeal No. 01980688

Agency No. 95-0159

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964 (Title VII), as

amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant to

29 C.F.R. � 1614.405. Complainant contends that she was discriminated

against on the basis of sex (female) when in September 1991, the Manager

of the Toledo Air Traffic Control Tower (Manager) intentionally disobeyed

orders to give complainant's husband, also an Air Traffic Controller,

whatever shift he needed in order to care for their daughter while

complainant completed her training at the FAA Academy. Complainant also

asserts that she was forced to resign when her request for leave without

pay in order to resolve her child care issue was denied.

At the time in question, complainant was employed as a GS-07 Air Traffic

Specialist Developmental at the agency's Oklahoma City, Oklahoma, FAA

Training Academy (Academy). The record indicates that in May 1991,

complainant arrived at the Academy to take the Air Traffic Control

Screen. Prior to her arrival at the Academy, complainant received

literature from the Academy which indicated that there was a new child

care facility available to students which was open until midnight.

Based on this information, complainant brought her five year old daughter

to Oklahoma City. After she arrived at the Academy, she discovered

that the literature was incorrect so she arranged for child care with

a neighbor. After successfully completing the first phase of training,

complainant lost her child care arrangement. Complainant spoke with

two people in the Great Lakes Region regarding her child care problems.

The area supervisor told complainant that he would contact the Manager

and arrangements would be made to have her husband work whatever shift

he needed so that he could care for their daughter while she completed

the program. Complainant maintains that her husband was not told about

his shift flexibility until after she resigned.

The agency contends that arrangements were made by the Manager and the

union to allow complainant's husband to have whatever schedule necessary

so that he could provide child care for his daughter. The agency

maintains that the arrangements made were not acceptable to complainant

because she did not want to place her husband in a position of getting

special treatment. Complainant then requested leave without pay so

that she could resolve her child care issues and return to the program.

Complainant's request was denied, but it is not entirely clear from the

record who made this decision. As a result of the denial of her request,

complainant resigned from the program but was told that she would have

reinstatement rights for three years.

In 1994, while attempting to get reinstated, complainant learned that

in 1991, the Manager had stated the following in a room full of people:

�I'll never have a husband and wife team working at my facility;� �I'm

not going to let the Region tell me what to do;� and �I'm going to do

as little as I can to keep her from getting to this facility.�

Believing the agency discriminated against her as referenced

above, complainant sought EEO counseling and subsequently filed a

formal complaint on September 27, 1994.<1> At the conclusion of the

investigation, complainant was informed of her right to request a hearing

before an EEOC Administrative Judge or alternatively, to receive a final

decision by the agency. Complainant requested that the agency issue a

final decision.

In its FAD, the agency concluded that complainant failed to establish a

prima facie case of sex discrimination because she failed to demonstrate

that similarly situated individuals not of her protected group were

treated more favorably. Nonetheless, the agency argued that assuming

arguendo complainant had established a prima facie case, the agency had

articulated a legitimate, nondiscriminatory reason for its action, namely,

that steps had been taken to rearrange her husband's schedule so that

he could provide child care. The agency also found that complainant

had not proffered evidence, nor did the record contain any evidence

suggesting that complainant was forced to resign. The agency maintains

that it attempted to work with complainant but she resigned before the

details could be worked out.

On appeal, complainant contends that her husband's schedule was not

changed due to the discriminatory beliefs and statements of the Manager.

She maintains that he was not offered a different work schedule until

after she had resigned. The agency requests that we affirm its FAD.

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must

initially establish a prima facie case by demonstrating that she was

subjected to an adverse employment action under circumstances that would

support an inference of discrimination. Furnco Construction Co. v. Waters,

438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending

on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804

n. 14. The burden then shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its actions. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,

complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993); Pavelka v. Department of the

Navy, EEOC Request No. 05950351 (December 14, 1995).

While comparative evidence is usually used to establish disparate

treatment, complainant need only set forth some evidence of acts

from which, if otherwise unexplained, an inference of discrimination

can be drawn. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576

(1978). Assuming that complainant established a prima facie case of

sex discrimination, we nonetheless find that the agency articulated a

legitimate, nondiscriminatory reason for its actions, namely that it

was in the process of rearranging complainant's husband's schedule.

The Commission also finds that complainant failed to present evidence

that more likely than not, the agency's articulated reasons for its

actions were a pretext for discrimination. In reaching this conclusion,

we note that there is no evidence in the record that complainant was

forced to resign or that her request for leave without pay was wrongly

refused since the Manager's office and the union were working out a plan

to rearrange her husband's schedule so that he could provide child care.

Further, we find that complainant has failed to prove by a preponderance

of the evidence, that the Manager delayed or denied complainant's request

to rearrange her husband's schedule, wrongly refused her leave request,

or forced her to resign. In this regard, we are not persuaded that the

Manager's statements constituted direct evidence of a discriminatory bias

based on complainant's sex. Rather, the record as a whole reflects that

the Manager believed that married couples working together in the same

facility caused problems for both their peers and their supervisors.

There is no indication that the Manager's viewpoint changed dependent

upon whether the current employee was the husband (i.e. a male) or

the wife (i.e. a female). Finally, we note that there is no evidence

that the agency had any obligation to change an employee's schedule to

facilitate childcare and, to the extent that the agency may have done so

for other employees, we again note that the record supports the agency's

contention that it was in the process of making such arrangements for

complainant's husband.

Therefore, after a careful review of the record, including complainant'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 (M0900)

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

June 26, 2001

__________________

Date

1 Complainant maintains that she was discriminated against in September

1991. She filed a complaint of discrimination on September 27, 1994.

Complainant's complaint was dismissed by the agency for being untimely.

Complainant filed a timely appeal of the dismissal and the Commission

affirmed the dismissal. Complainant then requested reconsideration of

the decision. The Commission granted the request and remanded the case

to the agency for investigation. See EEOC Appeal No. 01953496 (April 19,

1996); EEOC Request No. 05960569 (December 3, 1996).