01A13971
11-04-2002
Robbin L. Goulet, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Robbin L. Goulet v. Department of Transportation
01A13971
November 4, 2002
.
Robbin L. Goulet,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 01A13971
Agency Nos. 1971076;
1991008
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. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as an Aerospace Engineer, FM-0861-14, at the agency's Federal Aviation
Administration, Aircraft Certification Service, Engine & Propeller
Directorate, in Burlington, Massachusetts. Complainant sought EEO
counseling and subsequently filed two formal complaints on June 6, 1997
(I-97-1076) and October 30, 1998 (I-99-1008), respectively, alleging
that she was discriminated against when:
(1) on the bases of her race (Caucasian) and sex, she was not selected
for the position of Supervisory Aerospace Engineer, ES-0861-15,
advertised under Vacancy Announcement Number ANE-AIR-97-040-1330; and
on the bases of her sex and reprisal for prior EEO activity (apparently
under Title VII), she was not selected for the position of Assistant
Manager, Engine and Propeller Directorate, FG-0301-15, advertised under
Vacancy Announcement Number ANE-AIR-98-057-26827M.
The record reveals that in complaint 1-97-1076, complainant raised
additional allegations of discrimination against the agency. However,
the agency dismissed these allegations as untimely, and the dismissals
were subsequently affirmed by the Commission. See Goulet v. Department
of Transportation, EEOC Appeal No. 01976374 (July 24, 1998); EEOC Request
No. 05990204 (November 5, 1999).
Complainant also initially raised an allegation of sexually offensive
hostile work environment in complaint 1-99-1008. On February 23, 1999,
the agency dismissed the allegation on the basis that complainant failed
to timely contact an EEO Counselor. Complainant appealed the dismissal
of that allegation to the Office of Federal Operations (OFO). By letter
dated December 8, 1999, OFO informed the parties that due to regulatory
changes it was administratively closing the appeal and remanding the
partial dismissal to the agency for consolidation with the remainder of
the complaint.<1> Therefore, the dismissal of the sexually offensive
hostile work environment allegation will be addressed herein.
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.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that, as to (1), complainant established
a prima facie case of sex discrimination, however, she failed to establish
a prima facie case of race discrimination in that the selectee (S1) was
also Caucasian. The FAD found that the agency articulated a legitimate,
nondiscriminatory reason for its action, namely, that the members
of the Certification Supervisory Selection System panel did not refer
complainant to the Selecting Official (SO) for consideration. SO stated
that he was told by the panel members that complainant was ineffective
in several areas, and that she did not meet the criteria for the next
step in the selection process. Additionally, SO stated that one panel
member told him that complainant took much more time than any of the
others in answering the questions, and sometimes failed to answer the
question asked. The FAD concluded that complainant failed to establish
that the agency's reasons were pretextual.
As to (2), the FAD found that complainant established a prima facie case
of sex discrimination and reprisal. The FAD then found that the agency
articulated a legitimate, nondiscriminatory reason for its action,
namely, that complainant was not selected based on her performance
in the interview, the KSA review and her lack of skills necessary to
perform the duties of the position. The FAD considered complainant's
contention that she was judged unfairly with subjective criteria, but
concluded that she failed to establish that the agency's reasons were
pretext for discrimination or retaliation. The FAD further stated that
although complainant had more years of experience with the agency, her
qualifications were not observably superior to those of the selectee.
Complainant makes no new arguments on appeal. The agency requests that
we affirm its FAD.
As an initial matter we note that, as this is an appeal from a FAD issued
without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's
decision is subject to de novo review by the Commission. 29 C.F.R. �
1614.405(a). To prevail in a disparate treatment claim such as this,
complainant must satisfy the three-part evidentiary scheme fashioned
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must generally establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant established a prima facie case of
discrimination on the alleged bases, we turn to the agency to articulate
legitimate, nondiscriminatory reasons for its actions. A review of
the record reveals that, as to both promotions, the panel members and
selecting officials assert that complainant was not as qualified as
the selectee based on various criteria. Additionally, deficiencies
in complainant's responses during the interviews were cited for why
she was not selected. Although complainant goes to great lengths to
demonstrate that she was judged unfairly, she has not established that
those involved in the selection processes failed to select her because
of discriminatory or retaliatory animus. Additionally, the alleged lack
of females in key operating positions does not by itself, establish that
the agency intentionally discriminated as to the selections at issue.
We now address the claim of hostile work environment. The incidents
identified by complainant as creating a sexually offensive hostile work
environment allegedly took place on April 7, 1998, and May 19, 1998.<2>
The record reveals that complainant sought EEO counseling on August 13,
1998, which constituted untimely counselor contact. Complainant contends,
however, that her contact was timely in that on April 14 or 15, 1998,<3>
she spoke with the Manager (M1), Civil Rights Staff, FAA New England
Region to express her discomfort with the April 7 incident. We find that
complainant nevertheless, failed to satisfy the criterion for Counselor
contact; although complainant contacted an agency official logically
connected with the EEO process, there is no evidence that she exhibited
an intent to begin the EEO process at that time. See Cox v. Department
of Housing and Urban Development, EEOC Request No. 05980083 (July 30,
1998); Allen v. United States Postal Service, EEOC Request No. 05950933
(July 9, 1996). We note further that complainant has not persuaded the
Commission that a waiver or extension of the 45-day counselor contact
initiation requirement is warranted for any other reason. Therefore,
the Commission determines that the agency properly dismissed complainant's
hostile work environment claim for untimely EEO contact.
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
November 4, 2002
__________________
Date
1 On November 9, 1999, new regulations governing the administrative
processing of Federal Sector employment discrimination complaints
became effective. EEOC Regulation 29 C.F.R. � 1614.107(b) provides
that where an agency decides that some but not all of the claims in a
complaint should be dismissed, the agency shall notify the complainant
of its determination. However, that determination is not appealable
until final action is taken on the remainder of the complaint.
2 The April 7, 1998 incident allegedly involved two statements made at a
�send-off� luncheon: the first was the use of the phrase �our organization
is like a fraternity,� and the second was the recitation of a poem which
referred to the office as a �stud palace.� The May 19, 1998 incident was
when complainant allegedly overheard an individual, whom complainant did
not identify, telling a joke on a nearby telephone about an abused woman.
3 The Counselor's Report cites April 21, 1998 as the date when complainant
spoke with M1 about the April 7, 1998 incident.