01a44550r
10-13-2005
Sheryl A. Matthews, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Sheryl A. Matthews v. Department of Transportation (Federal Aviation
Administration)
01A44550
October 13, 2005
.
Sheryl A. Matthews,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 01A44550
Agency No. 5-02-5045
Hearing Nos. 320-2004-00012X and 320-2003-08448X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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. For the
following reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Airway Transport Systems Specialist
at the Denver, Colorado International Airport, initiated EEO Counselor
contact on March 27, 2002 and filed a formal complaint on May 4, 2002,
alleging that the agency discriminated against her on the bases of race
(African-American) and sex (female) when:
In March 2002, the agency charged complainant with twenty hours of
Absent-without-Leave (AWOL).
In an amended complaint dated November 7, 2002, complainant further
alleged that she was subjected to reprisal for prior EEO activity in
violation of Title VII when:
On June 10, 2002, complainant's immediate supervisor (S1) denied her
the opportunity to work on her radio/transmitter/receiver equipment;
On June 10, 2002, the agency revoked complainant's certification; and
In June 2002, a supervisor (S2) reduced complainant's workload and on
October 30, 2002 gave her an unsatisfactory evaluation.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On November 7, 2003, the AJ notified the
parties of her intention to issue a decision without a hearing and
gave the parties the opportunity to respond to the notice by November
28, 2003. The agency responded to the notice but complainant did not.
On May 26, 2004, the AJ issued a decision without a hearing, finding no
discrimination. The agency's final order implemented the AJ's decision.
On appeal, complainant restates arguments previously made during the
investigation.
On March 17 and 18, 2002, complainant failed to report for a weekend watch
assignment. In a letter dated March 20, 2002, S1 notified complainant
that she will be placed on AWOL for failing to report to work on March
17 and 18, 2002 without requesting leave or notifying the office. The
letter advised complainant that she could respond to the charge within
fifteen calendar days. In response, complainant objected to the charge
and explained that she was absent because she had been in �serious
training� and unintentionally forgot to report to work that weekend.
S1 then removed the AWOL charge from complainant's record and granted
her request to convert the absences to approved leave.
On June 9,2002, complainant reported to work to perform maintenance
work at her Remote Transmitter and Receiver (RTR) work site. S1 told
complainant that he did not know that she was going to be there
that day and had assigned two other technicians to work at her RTR
facilities. S1 directed complainant to clean up trash in preparation
for an inspection. Complainant contends that all other technicians were
allowed to work on their equipment on this date. Complainant contended
that this assignment was degrading and demeaning, and her supervisor
taunted her by asking if she thought she was �too good to clean up.�
On June 10, 2002,complainant reported to work and asked to work on her
radios, but S1 told her she would have to clean the facilities again
and could not work on radio equipment.
S1 contended that his work unit was preparing for a National Airspace
System Technical Evaluation Program (NASTEP) evaluation, which includes
an inspection of all equipment. S1 stated that in preparation for this
inspection, his unit had been cleaning up trash and excess materials
around the site and he needed complainant to help. He maintained that
he also helped clean the facilities on that day, and on other days,
other technicians helped clean the facility.
In June 2002, techniciains inspected the office and determined that some
of complainant's frequencies were out of tolerance, her radios were not
installed or set to proper power, there were junk radios in her work
area and problems with backup batteries, an exterior light was out of
service, and her paperwork was inadequate. Based on these findings and
recommendations of S1 and S2, the Manager of the Rocky Mountain System
Management Office revoked complainant's communications certification
and recommended that a formal training program be established to restore
complainant's proficiency. The inspectors maintained that the critical
nature of the problems with complainant's sites warranted the revocation
of her certification because a significant portion of complainant's work
was �substandard.�
Shortly after June 10, 2002, the agency granted complainant's request
to remove S1 as her supervisor, and made the Facility Manager (S2) her
supervisor. Complainant alleged that after her certification was revoked,
her work assignment was changed from working on equipment as a specialist
to self-study and computer-based instruction. She alleged that she became
isolated from other employees and was ordered to take two courses, the A
Plus and Network Plus programs. S2 responded that he pulled complainant
from all other assignments because complainant requested that the agency
allow her to focus on the two programs and taking the re-certification
courses in December 2002. S2 further stated that complainant worked in
a isolated area because she did not want to work in the area where other
employees worked because she did not want to be in the presence of S1.
S2 maintained that complainant never complained to him about the matter.
On October 20, 2002, complainant received a �Satisfactory� performance
evaluation. Complainant alleged that she had no work responsibilities
and was being �set up for failure� because S2 had not developed a
training plan to restore her proficiency and required her to study for
the A Plus and Network Plus programs, which were not related to getting
her certification restored and made it hard for her to complete any
other training. S2 responded that he gave complainant a satisfactory
rating because of the deficiencies in her communications equipment and
certifications.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case can
only be resolved by weighing conflicting evidence, a decision without
a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without a
hearing only upon a determination that the record has been adequately
developed for summary disposition. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).
Generally, in order to establish a prima facie case of discrimination
based on race and sex, the complainant must demonstrate that: (1) she
is a member of a protected class; and (2) she was treated differently,
with respect to some condition of employment, from others outside
her protected class and in a manner that creates an inference of
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
A complainant may establish a prima facie case of reprisal by showing
that: (1) she engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse treatment. Whitmire v. Department of the Air
Force, EEOC Appeal No. 01A00340 (September 25, 2000).
The burden of production 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). Once the
agency has articulated such a reason, the question becomes whether the
proffered explanation was the true reason for the agency's action, or
merely a pretext for discrimination. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 511 (1993). Although the burden of production may shift,
the burden of persuasion, by a preponderance of the evidence, remains
at all times on complainant. Burdine, 450 U.S. at 256.
Sex and Race Discrimination: Claim 1
For claim 1, complainant alleges that two males in other units also
failed to report to work but were not charged AWOL. However, the record
reveals that these individuals were not similarly situated to complainant
because they had a different supervisor than complainant and worked
in a different unit. Complainant has offered no other evidence that
would create an inference of race or sex discrimination. Consequently,
we find that complainant failed to establish a prima facie case of race
or sex discrimination for claim 1.
Reprisal: Claims 2 - 4
Complainant alleges that the agency engaged in reprisal against her
after she initiated EEO Counselor contact on March 27, 2002 for claim 1.
The record reveals that an EEO Counselor held a meeting on April 1, 2002
with S1, S2, and an Assistant Manager in an attempt to resolve claim 1.
The events in claims 2 - 4 occurred in June 2002 and in October 2002.
Therefore, we find that S1 and S2 were aware of complainant's prior EEO
activity when the matters contained in claims 2 - 4 occurred. Moreover,
the events in claims 2 - 4 occurred simultaneously with the EEO processing
of claim 1. Therefore, we find that a very strong temporal nexus was
created between complainant's prior EEO activity and the alleged acts
of reprisal. Consequently, we find that complainant established a prima
facie case of reprisal for claims 2 - 4.
Nonetheless, we find that the agency offered legitimate,
non-discriminatory reasons for its actions. Specifically, for claim 2,
S1 responded that he asked complainant to help him clean the facility on
the relevant dates because his unit needed to prepare for an evaluation.
He stated that other employees have also been asked to do the same. In an
affidavit, another female Systems Specialist stated that all employees
have been �required from time to time to help clean up the facilities�
and did not find the assignment demeaning nor unusual. A male Systems
Specialist likewise affirmed that he has been assigned to clean up the
work site �many times� as part of his normal work responsibilities.
Regarding claim 3, the agency responded that complainant's certification
was revoked because an inspection revealed deficiencies in her equipment.
In her investigative affidavit, complainant acknowledged that she was
responsible for her work equipment and stated that she did not know
if the results of the inspection were valid because she was not there
for the inspection. She further stated that she did not know of any
technicians whose inspections yielded the same determinations that did
not have their certifications revoked.
Regarding claim 4, the agency responded that complainant's work load was
reduced because her certification had been revoked and her evaluation
reflected that fact. In her investigative affidavit, complainant
acknowledged that once her certification was revoked, a reduction in
her workload was inevitable and did not dispute the legitimacy of the
inspection's findings.
Upon review of each of these claims, we find that complainant failed to
provide any evidence from which a reasonable fact-finder could conclude
that the legitimate, non-discriminatory reasons offered by the agency
were pretext for reprisal.
CONCLUSION
Therefore, after a thorough review of the record, the Commission finds
that the issuance of a decision without a hearing was appropriate, as no
genuine dispute of material fact exists. We find that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Further, construing the evidence to
be most favorable to complainant, we conclude that complainant failed
to present evidence that any of the agency's actions were motivated
by discriminatory animus toward complainant's protected classes.
The agency's final order is therefore AFFIRMED.
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
__October 13, 2005______________
Date