01985520
11-21-2000
Helen Topps-Clark, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Helen Topps-Clark v. Department of Transportation
01985520
November 21, 2000
.
Helen Topps-Clark,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01985520
Agency No. 4-97-059
Hearing No. 210-98-6089X
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (African-American), color (Black), and sex (female) in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.<1> For the reasons stated herein, the agency's
FAD is affirmed.
During the period in question, complainant was an Airway Facilities
Transportation Specialist (AFTS), GS-12, at an Illinois facility of the
agency. As an AFTS, complainant maintained, operated, and certified
electronic equipment utilized in the Chicago area of the National
Airspace System.
In Fall 1996, a new air traffic control tower was commissioned at
the agency's Illinois facility and, shortly thereafter, the agency
began receiving Unsatisfactory Condition Reports (UCRs) from Federal
Aviation Administration (FAA) controllers. The UCRs noted problems
with communications between FAA controllers and pilots. In response
to the UCRs, the Manager of the Chicago System Management Office (SMO)
requested an inspection of the SMO's on-site equipment by its technical
support personnel. That inspection resulted in an in-depth technical
inspection of the SMO's communication equipment and personnel by a
technical evaluation team (TET). The TET requested a meeting with the SMO
Manager in the midst of its evaluation and later created a report of its
evaluation, both of which recommended that the agency assess complainant's
technical proficiency. The TET pointed to two incidents, on February 27
and March 11, 1997, in which complainant exhibited difficulty performing
routine fundamental tasks.
In a letter dated April 11, 1997, the agency revoked complainant's
communications certifications and placed her on an Opportunity to
Demonstrate Performance (ODP) plan.<2> Believing she was a victim of
discrimination, complainant sought EEO counseling and, subsequently,
filed a complaint alleging that the agency discriminated against her
based on race (African-American) , color (Black), and sex (female).
At the conclusion of the complaint's investigation, complainant received
a copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision after a hearing,
finding no discrimination. The AJ concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions and that complainant
failed to establish pretext. The agency issued a FAD adopting the AJ's
finding of no unlawful employment discrimination. This appeal followed.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as �such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.� Universal Camera Corp. v. National
Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted).
A finding that discriminatory intent did not exist is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
In the instant case, the AJ found that the agency articulated a
legitimate, nondiscriminatory reason for its actions when it indicated
that complainant demonstrated a flawed understanding of the theory
and use of fundamental equipment and, except for one of complainant's
coworkers who was also decertified as a result of the TET's inspection,
other employees did not. The agency reasoned further that a flawed
understanding is unacceptable especially in a position where peoples'
lives are at issue. The AJ found further that complainant failed to
establish that the agency's articulated reason was pretextual. The
Commission has reviewed the full administrative record and we find that
the AJ's factual findings support her ultimate factual conclusion of no
discrimination based on race, color, or sex. Based on the foregoing,
we AFFIRM the agency's decision of no discrimination.
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
November 21, 2000
__________________
Date
1On 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.
2The ODP required completion of training courses and successful
performance on related exams. The ODP did not include a suspension or
a demotion.