Deborah S. Stein, Appellant,v.Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration) Agency.

Equal Employment Opportunity CommissionSep 7, 1999
01982554 (E.E.O.C. Sep. 7, 1999)

01982554

09-07-1999

Deborah S. Stein, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration) Agency.


Deborah S. Stein, )

Appellant, )

) Appeal No. 01982554

v. ) Agency No. DOT-6-97-6005

)

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

(Federal Aviation )

Administration) )

Agency. )

)

DECISION

Appellant filed a timely appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

basis of reprisal (prior EEO activity), and sex (female) in violation

of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �

2000e et seq. Appellant alleges she was discriminated against when:

(1) she was denied official time to prepare her EEO complaint and meet

with the EEO counselor; (2) she was denied consecutive time off to go

house hunting when compared to male employees and 3) she was denied

previously approved prime time annual leave. The appeal is accepted

in accordance with EEOC Order No. 960.001. For the following reasons,

the agency's decision is AFFIRMED.

The record reveals that during the relevant time, appellant was employed

as an Air Traffic Control Specialist, at the agency's San Carlos Air

Traffic Control Tower. Appellant alleged that the facility was closing

and being contracted out which required the employees to relocate to

other towers. She requested three days off in July 1996 to go house

hunting for purposes of relocating to coincide with her regular days off.

As part of her leave request she asked the responsible management official

(RMO) to work for her on one of the days. The RMO informed her he would

not be in that day and approved the rest of the time. Thereafter, he

put her on the schedule for overtime for one of her regular days off

allegedly without first telling her. Appellant contends the supervisor

was present at work on the days she had requested and could have worked

for her as he did for other employees, but refused in reprisal for her

filing an EEO complaint and because she is female. Appellant requested

another house hunting day in August 1996, which she contends was never

approved but was approved for another male employee.

Appellant alleged that she requested administrative time during

the month of June 1996 for purposes of preparing her EEO complaint.

She alleged that all of her requests were either denied or unduly delayed.

In addition, she alleged that she requested time in July 1996 to meet

with the EEO counselor which her supervisor denied, thus interfering

with her ability to process her EEO complaint.

Believing she was a victim of discrimination, appellant sought EEO

counseling and, subsequently, filed a complaint on October 31, 1996.

At the conclusion of the investigation, appellant failed to request

either a final agency decision or a hearing, and thereafter the agency

issued its final decision.

The agency concluded that appellant failed to establish a prima facie

case of reprisal by a preponderance of the evidence, and therefore, it

found no discrimination. Appellant did not raise the issue of gender

as a basis for discrimination until she filed her statement in support

of her appeal, and therefore, the agency did not issue a decision on

gender discrimination.

On appeal, appellant contends that the agency failed to investigate the

issue of emotional distress and her entitlement to compensatory damages.

For this reason, she contends that the complaint should be remanded for

further investigation. Appellant contends that based on the statements

of witnesses, there is evidence that her supervisor's actions against

her constituted sexual harassment in addition to reprisal. She also

contends that relevant leave documents which would have helped to prove

her claims were suspiciously destroyed, thereby warranting sanctions

against the agency.

Reprisal Claim

After a careful review of the record, based on McDonnell Douglas v. Green,

411 U.S. 792 (1973), Texas Department of Community Affairs v. Burdine,

450 U.S.248 (1981), United States Postal Service Board of Governors

v. Aikens, 460 U.S. 711,(1983); Hochstadt v. Worcester Foundation 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), we find that the appellant has established a prima facie case

of reprisal. She demonstrated that by filing an EEO complaint in 1995,

she had engaged in protected EEO activity, the RMO knew that she had

filed the complaint and she was treated differently in being denied

consecutive days off for house hunting purposes when compared to her

male counterparts.

We find that appellant has failed to demonstrate that more likely than

not, the agency's articulated reasons for its actions are a pretext for

discrimination. As discussed more fully below, the record establishes

that more likely than not, other non-discriminatory factors influenced

the RMO's actions such as the pressure of closing their operation of the

tower and the lack of sufficient staff to fully accommodate the leave

requests of the controllers. In the words of the union representative

the efforts to accommodate the house hunting needs of the controllers was

"very creative".

Appellant contends that every request she made for official time to

prepare her EEO complaint or to meet with the EEO counselor, was denied

or delayed indefinitely by the RMO. After a review of the record

we conclude that it does not fully support her contention. Instead,

the record shows that the days she selected in June 1996 were days when

other employees had scheduled annual leave which presumably would have

left the tower understaffed. There was evidence that the time period of

June 1996 was busier for the RMO in terms of his administrative duties

and paperwork related to the transfer of the facility. This left him

with less time for filling in for absent controllers which appellant did

not dispute. The record further reflects that the RMO offered appellant

compensatory time as provided under EEOC's Management Directive 110 as

a substitute measure. Apparently, appellant did not use compensatory

time and canceled her meeting with the EEO counselor on June 17, 1996

due to the lack of preparation time, but also due to the scheduling of

a meeting regarding the employees' permanent change of station (PCS)on

the same day. There was no evidence that the RMO denied appellant the

time to meet with the EEO counselor on June 17, or was responsible for

scheduling the PCS meeting.

Appellant then requested administrative time to meet with the EEO

counselor on July 2, 1996, and for time on June 17, 1996 after the PCS

meeting. The RMO granted the time on June 17 but deferred the decision

for July 2 because she had requested it on May 24, 1996, more than 30

days in advance. The union contract required that the watch schedule be

approved 28 days in advance of posting. There was no testimony or other

evidence that appellant's request for July 2, 1996 was later denied or

that this reasoning was pretextual. Furthermore, there was no testimony

or evidence that the RMO's suggestion that appellant use compensatory

time because of the staffing difficulties was unreasonable or pretextual.

Appellant contends that the RMO had not approved her consecutive days

off for purposes of house hunting as he had for her male counterparts

and that he refused to work for her as he did for the male employees to

accommodate her official or unofficial needs. The RMO countered that he

had indeed worked for appellant, but he was not always available to fill

in for controllers because he had other duties as the acting manager or

he needed the time off himself. This was corroborated by another air

traffic controller (ATC) who stated that the RMO filled in occasionally

but not on a regular basis. The union representative stated that the

RMO had made clear he was not working for any particular person, but

would put himself on the schedule to allow others to take off. The ATC

also stated that the time period appellant wanted off was a time when

the administrative duties and paperwork increased which required him to

help the RMO to get the work done. He further stated that appellant

had requested time that the employees had been informed would not be

available for taking time off. The record bears out the difficulty in

staffing that the RMO was having, particularly the date he required the

appellant to work overtime to accommodate an employee on sick leave.

To accommodate appellant, the other controllers each agreed to work two

hours of overtime to cover appellant's shift.

Appellant contends that she requested August 9, 1996 for house hunting

which the RMO ignored or failed to approve and later granted to a male

controller. Again, the record established that appellant's request

was made in May long before it could be approved by either management or

the union. In addition, the RMO stated that Appellant did not follow-up

on her request to him and if he granted the time to another controller,

it was because she failed to do so. Appellant failed to address the

RMO's articulated reason for not granting her this time and consequently,

she failed to show that his reason was a pretext for discrimination.

Appellant claims that she was denied prime time annual leave which the

RMO denies. Appellant fails to state the date of the prime time annual

leave in question and it is unclear from her affidavit whether the time

concerned one day or a entire two week period. Therefore, without more

specificity we are unable to sustain an analysis of this issue.

We note at this juncture that appellant alleged that the agency

intentionally destroyed time cards and leave memoranda which would have

helped her to prove her claim and that the RMO and the record keeper

should have known to retain them pursuant to an ongoing investigation.

Although we are concerned with the short retention time for these records

we cannot accurately judge the circumstances of the purging without

knowing the written retention policy in place at the towers. In addition,

the record contains some memoranda confirming appellant's leave requests

and the RMO's responses during the relevant time periods. Moreover,

the RMO does not deny that he may have been present on days that he told

appellant he could not cover for her which disposes of the need to see

his leave records. We decline to hold the RMO individually responsible

for the purging of leave records because there is no evidence that he

possessed the records or that he directed a third party to purge them.

Based on the facts outlined above, we are not persuaded that the RMO

acted in reprisal for appellant's EEO activity or that the agency's

articulated reasons are a pretext for discrimination.

Sexual Harassment

The appellant has failed to establish a prima facie case of sexual

harassment because she has not shown that she was subjected to unwelcome

conduct of a sexual nature. 29 C.F.R.�1604.11(a); See e.g., Teresa

McClellan v. Department of Defense, EEOC No. 01983023 (March 2, 1999).

She has, however, presented a prima facie case of discrimination based

on gender because appellant established that the RMO's scheduling of

her house hunting was different from her male counterparts.

As discussed above, however, we find that appellant failed to show that

the agency's reasons for taking the actions regarding her time were

more likely than not a pretext for discrimination. Although there was

testimony that the RMO was openly hostile to appellant and that he had

stated "she's a woman, she's on the rag", there was at least an equal

amount of testimony that the RMO did not treat appellant differently.

There was also testimony from other air traffic controllers suggesting

other non-discriminatory reasons for the RMO's actions such as appellant's

tendency to stretch the rules as far as she could, the existence of a

professional dispute between the RMO and appellant's husband, as well

as the factors discussed above. Taking the evidence as a whole, we do

not find that the RMO's single crude remark constitutes enough evidence

to warrant a conclusion that his actions were discriminatory based

on her gender or amounted to sexual harassment. See e.g. Downes v.

Federal Aviation Administration, 775 F.2d 288, 293 (D.C. Cir. 1985),

see also, Samuel T. Cobb, III v. Robert E. Rubin, Secretary, Department

of the Treasury, 05970077, March 13, 1997.

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 agency's

final decision. Because we conclude that there was no discrimination,

there is no need to remand the case for a supplemental investigation of

the issue of compensatory damages.

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:

9/7/99

DATE Carlton Hadden, Acting Director

Office of Federal Operations