01a10522
02-15-2001
Mark Barnick, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Authority), Agency.
Mark Barnick v. Department of Transportation
01A10522
February 15, 2001
.
Mark Barnick,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Authority),
Agency.
Appeal No. 01A10522
Agency No. 4-99-4026
Hearing No. 220-99-5277
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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.<1>
Complainant alleges he was discriminated against on the basis of sex
(male) when he was: (1) reassigned on or about September 17, 1998;
(2) issued a letter of reprimand on September 8, 1998; and (3) not
offered Employee Assistance Program (EAP) counseling. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that during the relevant time, complainant was employed
as a FG-2152-15 Supervisory Air Traffic Control Specialist (ATCS) at the
agency's Federal Aviation Administration/Cleveland Air Route Traffic
Control Center facility, in Oberlin, Ohio. Complainant contends that
his second level supervisor (S1) asked him if he wanted to be reassigned
to another duty area following a sexual harassment complaint which was
filed against complainant. Complainant stated that while he ultimately
requested the reassignment in August of 1998, he did not want to leave his
duty area but felt pressured to do so by S1. The record reflects that
complainant was issued a letter of reprimand in September of 1998 for
failing to address an inappropriate comment made about a female ATCS.
Complainant further stated that the agency discriminated against him
when he was not offered EAP counseling after he learned of the letter of
reprimand, as another Supervisory ATCS also received a letter of reprimand
for the same incident was offered EAP counseling. Complainant filed
a formal EEO complaint with the agency on December 28, 1998, alleging
that the agency had discriminated against him as referenced above.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of sex discrimination. In so finding, the AJ noted that while complainant
is a member of a protected group by virtue of his sex and was adversely
affected by the agency actions at issue, he failed to show a causal
connection between his sex and the adverse actions he complained of.
In so finding, the AJ found that the evidence of record established that
complainant voluntarily requested reassignment, noting that he did so
prior to the completion of the investigation into allegations of sexual
harassment and prior to his being issued the letter of reprimand. The AJ
further found that regarding the letter of reprimand, complainant failed
to establish any similarly situated employees who were treated differently
under similar circumstances. In addition, the AJ found that there was no
evidence that complainant was not offered EAP counseling due to his sex.
The AJ noted that complainant was not offered EAP counseling as was a
similarly situated female employee because the facility Manager determined
that upon receipt of the letter of reprimand, complainant did not appear
upset to the point where he needed EAP counseling and did not request
such counseling. The agency's final order implemented the AJ's decision.
Complainant has made no new contentions on appeal.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. A review of the record
fails to reveal probative evidence that any of the agency's actions
regarding the reassignment or the letter of reprimand were motivated by
discriminatory animus toward complainant's sex. The Commission finds that
complainant established a prima facie case of sex discrimination regarding
the failure to offer him EAP counseling, as a similarly situated employee
was offered counseling while he was not. However, the facility Manager
averred that complainant had not reacted to the letter of reprimand in
such as way that EAP counseling was warranted. The Commission further
finds that the record does not reveal evidence tending to establish that
the agency's articulated reason is pretextual in nature. We thus discern
no basis to disturb the AJ's decision. Therefore, after a careful review
of the record, and arguments and evidence not specifically addressed in
this decision, we AFFIRM the agency's final order.
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
February 15, 2001
__________________
Date
1 On 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.