Joseph M. Pizzie, Appellant,v.Rodney E. Slater, Secretary, Department of Transportation, Federal Aviation Administration, Agency.

Equal Employment Opportunity CommissionSep 13, 1999
01971389 (E.E.O.C. Sep. 13, 1999)

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