Margaret Sanchez, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionSep 22, 2004
01A43915r (E.E.O.C. Sep. 22, 2004)

01A43915r

09-22-2004

Margaret Sanchez, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.


Margaret Sanchez v. Department of Transportation

01A43915

September 22, 2004

.

Margaret Sanchez,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

Agency.

Appeal No. 01A43915

Agency No. 5-03-5088

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405.

The record reveals that during the relevant time, complainant was employed

as an Air Traffic Evaluation Specialist at the agency's Fort Worth,

Texas facility. Complainant sought EEO counseling and subsequently filed

a formal complaint on June 19, 2003, alleging that she was retaliated

against for prior EEO activity (arising under Title VII) when in March

2003, the agency failed to select her for the position of Air Traffic

Manager.

At the conclusion of the investigation, complainant was informed of

her right to request a hearing before an EEOC Administrative Judge or

alternatively, to receive a final decision by the agency. Complainant

requested that the agency issue a final decision. In its FAD, the agency

found no discrimination.

As a preliminary matter, we note that we review the decision

on an appeal from a final agency decision de novo. 29 C.F.R. �

1614.405(a). Accordingly, we have carefully reviewed the entire record

before us in our attempt to discern whether a preponderance of the

evidence warrants a modification of the agency's ruling. See 29 C.F.R. �

1614.405(a).

Although the initial inquiry in a discrimination case usually focuses on

whether the complainant has established a prima facie case, following

this order of analysis is unnecessary when, as here, the agency has

articulated a legitimate, nondiscriminatory reason for its actions. See

Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,

1990). In such cases, the inquiry shifts from whether the complainant

has established a prima facie case to whether s/he has demonstrated by a

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

In this matter, the selecting official responded that the agency

considered six applicants, including complainant for the position.

The selecting official stated that the selectee was chosen because he

had been an Air Traffic Manager at two other facilities and had served as

Deputy Air Traffic Manger twice. The selecting official further stated

that she chose the selectee because he held branch manager positions

in the Alaska office and had cross-organizational experience as the

Manager of the Civil Rights Branch, whereas complainant had no previous

Air Traffic manager experience or experience as a second-line supervisor.

The selecting official also noted that the selectee had return rights for

the position because he had previously accepted an assignment in Alaska.

Upon review of the matter, we find that complainant failed to provide any

persuasive evidence that the agency's reasons were pretext for unlawful

discrimination. Consequently, we find that the agency properly found

no discrimination.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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

_September 22, 2004_________________

Date