01971389
09-13-1999
Joseph M. Pizzie, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Federal Aviation Administration, Agency.
Joseph M. Pizzie v. Department of Transportation
01971389
September 13, 1999
Joseph M. Pizzie, )
Appellant, )
) Appeal No. 01971389
v. ) Agency No. 5-95-212
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Federal Aviation Administration, )
Agency. )
)
)
DECISION
Appellant timely filed an appeal with the Commission from a final
decision of the agency concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. � 2000e et seq. The appeal is accepted in accordance with
EEOC Order No. 960, as amended. See 29 C.F.R. � 1614.402(a).
Appellant worked as a controller in the Air Traffic (AT) Branch of the
agency's facility in Denver, Colorado. He alleged that the agency
discriminated against him on the basis of sex by denying his request to
perform non-operational duties in lieu of using sick leave, but granting
the same request to female controllers. Under the scheme established
by the Supreme Court for disparate treatment claims, appellant must
initially establish a prima facie case of discrimination. The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its action. Finally, appellant must show that the agency's
reason is pretextual. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-05 (1973); Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253-56 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993); Pavelka v. Department of the Navy, EEOC Request No. 05950351
(December 14, 1995).
In March 1994, when appellant was medically disqualified from working as
a controller, he requested, through the facility representative, that he
be assigned non-operational duties in the Airway Facilities (AF) Branch of
the facility. His request was refused. In the summer of 1994, a female
controller assigned to AT who, like appellant, was medically disqualified
from controller operations, was allowed to perform administrative duties
in AF. Contrary to the agency, we find that these circumstances give
rise to a strong prima facie case of sex discrimination.
In its final decision, the agency stated that the female controller was
allowed to perform administrative work in AF because the administrative
work in AT became exhausted, whereas in appellant's case, there was still
administrative work that needed to be done in AT. We find this reason
to be legitimate, nondiscriminatory, and fully supported by the record.
We now consider whether the agency's explanation is a pretext for sex
discrimination.
The representative stated that, after consulting with the manager,
he informed appellant that he could not work in AF because there
was administrative work available within AT that appellant could do.
The representative stated that appellant wanted to work in AF because the
administrative duties there were mechanical, rather than clerical, as they
were in AT. Investigative Report (IR), Exhibit (Ex) 9. The representative
also stated that the manager did not check with the AF manager to see if
any non-operational work was available there, and that the manager was
not required to do so. The manager stated that appellant never asked
to perform non-operational work in AT. Appellant has not challenged
the manager's assertion that administrative work was available in AT.
Regarding the female controller, representative stated that she had
initially been performing administrative duties within AT, but that
AT ran out of such work for her. He indicated that, in the female
controller's case, went first to the assistant manager to see if there
was any administrative work available in AF or in other AT facilities,
but that the assistant manager told him that nothing could be done.
He stated that he then went to the manager, and that the manager
told him that he would check with AF as a favor to him. IR, Ex. 9.
The manager confirmed that the female controller was authorized to work
administrative duties, but did not say whether she was assigned to
AT or AF. IR, Ex. 7. The female controller stated that she did not
request administrative work in AF, but that a manager or supervisor
called around to other facilities to see if such work was available.
She also testified that she contacted a technician who worked at AF,
that the technician contacted his supervisor, who in turn contacted
the manager, and that the manager authorized her detail to AF by phone.
IR, Ex. 11.
Appellant's argument that the agency's explanation is pretextual is
severely undermined by a document establishing that, during 1994 and
1995, five males and four females who were medically unable to work as
air traffic controllers were allowed to perform non-operational work
at the facility. IR, Ex. 16. Appellant's pretext argument is further
undermined by the representative's admission that he persuaded the
manager to check with AF in the female controller's situation after the
assistant manager declined to do so. Appellant has not presented any
documents or testimony which contradicts the affidavits of the manager,
the representative, or the female controller, or which undermines their
credibility as witnesses.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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:
September 13, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations