Theresa Joanne D'Angelo, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.

Equal Employment Opportunity CommissionFeb 22, 2001
01a04767 (E.E.O.C. Feb. 22, 2001)

01a04767

02-22-2001

Theresa Joanne D'Angelo, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.


Theresa Joanne D'Angelo v. Department of Transportation

01A04767

February 22, 2001

.

Theresa Joanne D'Angelo,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

(Federal Aviation Administration),

Agency.

Appeal No. 01A04767

Agency No. I-98-1098

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., and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant

alleged that she was discriminated against on the bases of her sex

(female) and age (56) when she was denied career advancement to the

GS-14 level and an opportunity for mentoring.

The record reveals that during the relevant time, complainant was

employed as a Program Management Analyst, FG-343-13, at the agency's New

York Flights Standards Division in Jamaica, New York. Believing she

was a victim of discrimination, complainant sought EEO counseling

and subsequently filed a formal complaint on July 14, 1998. At the

conclusion of the investigation, complainant requested a hearing before

an EEOC Administrative Judge. However, complainant later withdrew her

request and the agency issued its instant final decision.

In its FAD, the agency concluded that complainant had not been subjected

to discrimination. Complainant pointed to two younger, male Computer

Specialists who had been upgraded to the GS-14 level in 1998, via an

accretion of duties. However, the agency found that complainant was

not similarly situated to the Computer Specialists inasmuch as they

occupied a different job classification series and performed different

work functions. Insofar as complainant raised mentoring in her complaint,

the agency found that she had not requested to participate in the agency's

mentoring program. While complainant had proposed a reorganization

of the Program Management Branch to include a new layer of supervision

at the GS-14 level, various officials stated that her proposal was not

feasible and that, in any event, any such newly-created positions would

have to be filled through the competitive process rather than by an

upgrade through an accretion of duties.

On appeal, complainant contends that agency supervisors used their

experience with the classification system to guide and otherwise

to enable the Computer Specialists to obtain an upgrade through an

accretion of duties, but fail to take such measures for females in the

administrative field. Complainant also sets forth her views on her

reorganization proposal. The agency requests that we affirm its FAD.

Applying the standards set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)

(requiring a showing that age was a determinative factor, in the sense

that "but for" age, complainant would not have been subject to the adverse

action at issue), the Commission agrees with the agency that complainant

failed to establish a prima facie case of sex or age discrimination

because she was not similar situated to the Computer Specialists. In any

event, even assuming that complaint could establish a prima facie case

of discrimination, we find that complainant failed to present evidence

that more likely than not, the agency's articulated reasons for its

actions were a pretext for 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 (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 22, 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.