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POWERS v. DOLE

November 20, 1984

MICHAEL F. POWERS, PLAINTIFF,
v.
ELIZABETH H. DOLE, SECRETARY OF U.S. DEPARTMENT OF TRANSPORTATION, DEFENDANT.



The opinion of the court was delivered by: Bua, District Judge.

MEMORANDUM AND ORDER

I. FACTS

Michael Powers has been employed by the FAA continuously since August 30, 1981. During 1981, Powers participated in the FAA Academy's training program for air traffic controllers. He was notified on December 14, 1981, that he had failed Phase IV of the training program. He was thereafter assigned to another position within the FAA at a lower rate of pay.

On December 30, 1981, Powers filed a formal grievance within the FAA alleging that he had failed the training program for air traffic controllers because his training class had received inadequate instruction. He requested that he be "recycled," i.e., permitted to undergo air traffic controller training again.

On February 23, 1982, the FAA grievance examiner responsible for the initial review of Powers' grievance, Elmer Loudermilk, recommended that Powers' request for recycling be granted. Kenneth C. Patterson, the grievance official to whom the grievance examiner submitted his recommendation in accordance with the FAA's grievance procedures, rejected the examiner's recommendation and concluded that Powers' grievance should be denied. In an affidavit submitted in support of defendant's motion for summary judgment, Patterson stated that he found insufficient evidence to substantiate Powers' claim of inadequate instruction. In addition, he stated that he did not base his decision on the fact that Powers is a white male.

Paul K. Bohr, Director of the Great Lakes Region of the FAA, subsequently reviewed Powers' grievance pursuant to FAA grievance procedures and concluded that it should be denied. In his affidavit, Bohr stated that he found no merit in Powers' claim that inadequate instruction was the cause of his training failure. In addition, he stated that he did not base his decision on the fact that Powers is a white male. In response to Powers' letter of May 19, 1982 challenging his decision, Bohr denied Powers' request for reconsideration of his grievance in a letter dated June 23, 1982.

On May 18, 1982, the day before he wrote to Bohr requesting reconsideration of his grievance, Powers lodged an informal discrimination complaint with Henry T. Rogers, the Equal Employment Opportunity Counselor for the DOT in Chicago. On June 29, 1982, Powers timely filed a formal complaint of discrimination with the FAA. He cited as the basis for his discrimination complaint the "[i]mproper and unfair handling of an FAA Agency Grievance. . . ." In addition, he alleged: "Minorities that show good reason to be recycled are given the opportunity. It appears, that in this case there is good reason, and I am being denied the right to be recycled because I am a white male, rather than part of a minority group."

On April 6, 1984, the DOT issued its finding of no discrimination in Powers' case. On May 1, 1984, Powers filed his complaint in this case, alleging that the defendant discriminated against him because of his "race (white) and sex (male) in that minorities and females who show cause to be recycled through the Federal Aviation Administration Academy are so recycled, although he having shown cause to be recycled was not."

Supported by affidavits of defendant's employees, FAA records reveal that eleven individuals who failed the FAA air traffic controller training program filed FAA grievances seeking recycling during 1980 through 1983. Only one of those eleven was recycled. The one individual who was recycled through the grievance procedure was a nonminority male.

Powers does not allege that he was discriminated against in the course of his training or instruction for the position of air traffic controller. Rather, he alleges discrimination in the FAA's rejection of his grievance claiming that he failed his training course because of poor instruction.

II. DISCUSSION

1. Plaintiff's Motion and Local ...


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