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

Equal Employment Opportunity CommissionSep 9, 1999
01971328 (E.E.O.C. Sep. 9, 1999)

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