01971844
03-17-1999
Richard A. Byrd, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration) Agency.
Richard A. Byrd, )
Appellant, )
) Appeal No. 01971844
v. ) Agency No. DOT-95-0432
) Hearing No. 280-97-4024X
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
(Federal Aviation Administration) )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of race (Black), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. Appellant alleges he was discriminated against when he
received unsatisfactory evaluations which led to the termination of
his Air Traffic Controller Specialist training. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a Developmental Air Traffic Controller Specialist (�Developmental�) at
the agency's Wichita Air Traffic Control Tower (�facility�). On October
31, 1993, appellant began his training as a Developmental. In order to
successfully complete his training, appellant was required to be certified
in three areas (Clearance Delivery, Ground Control and Local Control).
After successfully certifying in Clearance Delivery and Ground Control,
appellant began training in the Local Control area in December of 1993.
A Developmental with no prior experience was allotted a maximum of
160 hours of on-the-job-training (�OTJT�) to certify in the Local
Control area. If a Developmental's supervisor deemed it necessary,
the training could be extended up to 32 additional hours.<1> During
appellant's Local Control training, his evaluations consistently reflected
the need for improvement in his focus and awareness. After appellant
used his allotted 160 hours of OTJT, his Developmental Supervisor (�DS�)
(White) granted him an additional 32 hours of Local Control training.
On August 16, 1994, after appellant had used 25 of the 32 additional hours
of training, the DS administered a Skill Check to assess appellant.
The DS stated that after the Skill Check revealed that appellant
continued to have problems with his focus and awareness, he canceled
appellant's additional seven hours of training. At this point, the
Manager of the facility reviewed appellant's performance by examining
his Local Control evaluations and decided not to certify him in the
Local Control area. Appellant asserted that he did not receive adequate
Local Control training, and specifically that his supervisors failed to
provide him with the necessary information to allow him to correct his
deficiencies.<2> The DS agreed that appellant's supervisors did not
provide appellant or any other Developmental with cites to the specific
regulations concerning their deficiencies, but stated that at that time,
they were unaware of the new training program's requirement that they
provide cites. The DS further stated that appellant received the exact
same substantive training that was received by all other Developmentals,
and that since most of appellant's problems involved judgment issues,
there were no specific regulations to cite.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on February
9, 1995. At the conclusion of the investigation, appellant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
Recommended Decision (RD) finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie
case of racial discrimination because he failed to demonstrate that
similarly situated Developmentals not in his protected class were
treated differently under similar circumstances. The AJ nevertheless
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, that appellant failed to perform at
the consistent level necessary to be certified in the Local Control
element of his training. The AJ then concluded that appellant did not
establish that more likely than not, the agency's articulated reasons
were a pretext to mask unlawful discrimination. Specifically, the AJ
found that, while appellant argued that the Local Control training was
inadequate, he failed to demonstrate that his training was different from
that received by any other Developmental. The agency's FAD adopted the
AJ's RD. Appellant makes no new contentions on appeal, and the agency
requests that we affirm the FAD.
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ's
RD sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. Nothing proffered by appellant on appeal
differs significantly from the arguments presented at the hearing and
given full consideration by the AJ. Therefore, the Commission discerns
no basis upon which to overturn the AJ's finding of no discrimination in
this matter. Accordingly, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision which
adopted the AJ's finding of no racial discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
March 17, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations1 The supervisor
could terminate the additional hours if the
Developmental did not show progression.
2 Appellant primarily contends that his supervisors failed to follow
the guidelines of the new training program which required supervisors to
provide Developmentals with cites to the regulations that corresponded
to their deficiencies.