Helen Topps-Clark, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionNov 21, 2000
01985520 (E.E.O.C. Nov. 21, 2000)

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.