01a04767
02-22-2001
Theresa Joanne D'Angelo, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Theresa Joanne D'Angelo v. Department of Transportation
01A04767
February 22, 2001
.
Theresa Joanne D'Angelo,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 01A04767
Agency No. I-98-1098
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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged that she was discriminated against on the bases of her sex
(female) and age (56) when she was denied career advancement to the
GS-14 level and an opportunity for mentoring.
The record reveals that during the relevant time, complainant was
employed as a Program Management Analyst, FG-343-13, at the agency's New
York Flights Standards Division in Jamaica, New York. Believing she
was a victim of discrimination, complainant sought EEO counseling
and subsequently filed a formal complaint on July 14, 1998. At the
conclusion of the investigation, complainant requested a hearing before
an EEOC Administrative Judge. However, complainant later withdrew her
request and the agency issued its instant final decision.
In its FAD, the agency concluded that complainant had not been subjected
to discrimination. Complainant pointed to two younger, male Computer
Specialists who had been upgraded to the GS-14 level in 1998, via an
accretion of duties. However, the agency found that complainant was
not similarly situated to the Computer Specialists inasmuch as they
occupied a different job classification series and performed different
work functions. Insofar as complainant raised mentoring in her complaint,
the agency found that she had not requested to participate in the agency's
mentoring program. While complainant had proposed a reorganization
of the Program Management Branch to include a new layer of supervision
at the GS-14 level, various officials stated that her proposal was not
feasible and that, in any event, any such newly-created positions would
have to be filled through the competitive process rather than by an
upgrade through an accretion of duties.
On appeal, complainant contends that agency supervisors used their
experience with the classification system to guide and otherwise
to enable the Computer Specialists to obtain an upgrade through an
accretion of duties, but fail to take such measures for females in the
administrative field. Complainant also sets forth her views on her
reorganization proposal. The agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue), the Commission agrees with the agency that complainant
failed to establish a prima facie case of sex or age discrimination
because she was not similar situated to the Computer Specialists. In any
event, even assuming that complaint could establish a prima facie case
of discrimination, we find that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination.
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
February 22, 2001
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.