01971328
09-09-1999
Deborah S. Stein, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Federal Aviation Administration Agency.
Deborah S. Stein, )
Appellant, )
) Appeal No. 01971328
v. ) Agency No. 960041
)
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 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 that
she was discriminated against when she was not promoted to the position
of Supervisory Air Traffic Control Specialist GS-2152-12. 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 GS-2152-10 at the agency's San
Carlos Air Traffic Control Tower.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a complaint on October 21, 1995. At
the conclusion of the investigation, appellant requested that the agency
issue a final agency decision.
The agency concluded that appellant established a prima facie case of
sex discrimination because she demonstrated that she is a member of a
protected class, she applied for and was qualified for the position and
was not selected, and a person outside of appellant's protected group
was selected.
On appeal, appellant contends that the agency failed to consider the
fact that she had superior ratings in all the criteria for the position
compared to the selectee who had scored one satisfactory and four
superior ratings. She also argued that the selectee had failed his
first assignment whereas she had worked at the Full Performance Level
(FPL) for one year.
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), Loeb v. Textron, 600 F.2d 1003 (1st
Cir. 1979), the Commission agrees with the agency that appellant failed
to establish by a preponderance of the evidence that the agency's reasons
for not selecting her were just a pretext for discrimination. The agency
stated that it based its selection on the fact that the selectee (male)
had been with the agency two years longer than appellant, and on the
fact that he had outstanding administrative skills among other things.
The selectee had managed the control tower at Salinas as the controller in
charge and had done an excellent job in the opinion of his supervisor.
Appellant did not have similar experience. Appellant's supervisor
testified that success at the full performance level was but one factor
out of many used in the selection process. He also stated that both
the selectee and appellant were well qualified for the position.
We are also persuaded that appellant's gender was not a motivating factor
because of the selecting official's record in choosing six women out
of eleven selections for supervisory and management positions, two of
whom had young children at the time of their selections.
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.
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:
9/09/99
DATE Carlton Hadden, Acting Director
Office of Federal Operations