Terri Cisper, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity CommissionNov 17, 2000
01a05750 (E.E.O.C. Nov. 17, 2000)

01a05750

11-17-2000

Terri Cisper, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation (Federal Aviation Administration), Agency.


Terri Cisper v. Department of Transportation (FAA)

01A05750

November 17, 2000

.

Terri Cisper,

Complainant,

v.

Rodney E. Slater,

Secretary,

Department of Transportation

(Federal Aviation Administration),

Agency.

Appeal No. 01A05750

Agency No. DOT-5-98-5095

Hearing No. 310-99-5555X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning her 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., and

Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as

amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. Complainant alleges she was discriminated

against on the bases of race (Caucasian), color (white), sex (female),

disability (post traumatic stress disorder, bursitis in the left hip,

pain in feet, back and neck, and ringing in right ear), and reprisal

(prior EEO activity) when she was discharged during her probationary

period on or about February 13, 1998. For the following reasons, the

Commission AFFIRMS the agency's final order.

The record reveals that complainant, formerly a probationary Aviation

Transportation Specialist, at the agency's Dallas, Texas facility, filed

a formal EEO complaint with the agency on April 22, 1998, alleging

that the agency had discriminated against her 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 found that the record revealed the following facts: at the

time relevant to the complaint, the agency hired complainant subject

to a one year probationary period. On her application for employment,

complainant reported that she had not been fired from her job in the past

ten year and that she held an Associates Degree. The AJ found however,

that these statements were not true. Complainant's Assistant Manager

decided to discharge complainant for lack of honesty and integrity.

The AJ concluded that complainant failed to establish a prima facie

case of discrimination on any bases. Specifically, the AJ found no

evidence of other probationary employees who falsified information in

their application for employment.

The AJ further concluded that the agency articulated legitimate,

nondiscriminatory reasons for its actions. The AJ found that an

investigation into complainant's application revealed that complainant

lied on her application for employment. Specifically, the investigation

established that complainant was fired from a job within the last ten

years, and she did not hold an Associate Degree at the time of her

application.

The AJ found that complainant did not establish that more likely than

not, the agency's articulated reasons were a pretext to mask unlawful

discrimination or retaliation. In reaching this conclusion, the AJ

noted that it was unlikely complainant's supervisor would discharge

complainant due to a discriminatory motive, only after recently hiring

her for the position. The AJ also noted that the evidence revealed

complainant would not have been hired for the position unless she had

represented that she held an Associates Degree. Thus, the AJ found,

the information complainant lied about was critical to the selection.

On September 7, 2000, the agency issued a final order that implemented

the AJ's decision. On appeal, complainant restates arguments previously

made during the investigation. She disputes that she was fired by

her prior employer and explains that she was retaliated against by the

prior employer, filed suit, and settled the case. She claims she has

an Associates Degree. In response, the agency restates the position it

took in its FAD, and requests that we affirm its final order.

The Commission's regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. This regulation is patterned after the summary judgment procedures

set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary

Judgment is proper when "material facts are not in genuine dispute."

29 C.F.R. � 1614.109(g). Only a dispute over facts that are truly

material to the outcome of the case should preclude summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (only disputes

over facts that might affect the outcome of the suit under the governing

law, and not irrelevant or unnecessary disputes, will preclude the entry

of summary judgment). For example, when a complainant is unable to

set forth facts necessary to establish one essential element of a prima

facie case, a dispute over facts necessary to prove another element of

the case would not be material to the outcome. Celotex v. Catrett,

477 U.S. 317, 322-23 (1986). EEOC MD-110, at 7-15 November 9, 1999.

The Commission will apply a de novo standard of review when it reviews

an AJ's decision to issue a decision without a hearing pursuant to 29

C.F.R. � 1614.109(g). See EEOC MD-110, at 9-16.

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. We note that complainant

failed to present evidence that any of the agency's actions were in

retaliation for complainant's prior EEO activity or were motivated

by discriminatory animus toward complainant's race, color, sex,

or disability. Even assuming, solely for the purpose of our further

analysis, that complainant does have a disability, she failed to set forth

sufficient facts that would a establish a genuine dispute as to whether

the agency's reasons for its actions were a pretext for discrimination.

Although complainant disputes the results of the investigation into her

application for employment, she failed to establish that agency officials

acted not on the results of the investigation, but instead discriminated

against her based upon a discriminatory motive. We discern no basis

to disturb the AJ's decision. 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 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

November 17, 2000

__________________

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.