01a45723
12-17-2004
Jean Paul J. Kruglewicz, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Jean Paul J. Kruglewicz v. Department of Agriculture
01A45723
December 17, 2004
.
Jean Paul J. Kruglewicz,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A45723
Agency No. 010654
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his formal 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as an Appeals and
Litigation Coordinator, GS-13 at the agency's Planning Staff Unit, Atlanta
Regional Office, Southern Region 8 in Atlanta, Georgia.<1> Complainant
filed a formal complaint on July 6, 2001. Therein, complainant claimed
that he was discriminated against on the bases of sex (male) and age
(D.O.B. 11/24/43) when:
(1) through a reorganization of the Planning Unit in the Regional Office
in Atlanta, Georgia, on March 25, 2001, his duties were reduced and he
was reassigned to the position of Litigation Coordinator, GS-13; and
(2) his former position should have been classified as a GS-14 position.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of sex and age discrimination. The agency determined
that it also had legitimate, non-discriminatory reasons for its actions.
Regarding claim (1), the agency found that a rapidly increasing
workload overwhelmed complainant, as well as the agency's ability to
meet deadlines; and that the determination to create two new divisions
was motivated by concerns regarding the timely processing of work.
Regarding claim (2), the agency found that complainant did not request a
desk audit, which it determined was a necessary requisite to an upgrade.
The record also contains the affidavit of an agency Deputy Regional
Forester, who stated that it was his determination that complainant's
former job was not a GS-14 level job, and that it required two GS-13's to
handle the workload. The Deputy Regional Forest stated that he spoke
with a Classification Specialist for the agency's Southern Region,
who stated that complainant's former position was properly classified
at the GS-13 level.
The agency further determined that complainant did not establish that
the agency's reasons were a pretext for discrimination.
On appeal, complainant contends that he �never had an opportunity to
comment on the false, misleading, misstated statements that were a part
of the Record of Investigation.� Complainant further argues that the
agency failed to address a claim raised in his formal complaint regarding
his non-selection for various positions. Furthermore, complainant
argues that he was subjected to retaliation following the filing of
his complaint.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
We find that the agency articulated legitimate, non-discriminatory
reasons for its employment actions, which were not persuasively rebutted
by complainant. The record in this case contains an affidavit from the
Director of Planning (Director), who is also complainant's Supervisor.
Therein, the Director stated that complainant served as a Regional Appeals
and Litigation Coordinator for about 15 years and that because of an
increased workload, a determination was made to establish and classify
two positions at the GS-13 level; one specific to the Appeals Coordinator
and the other specific to a Litigation Coordinator. The Director stated
that because of complainant's experience in litigation, he was reassigned
to the Litigation Coordinator position (claim (1)). The Director
further stated that complainant never requested a desk audit for his
former position, and that he requested a desk audit as a resolution
of his complaint (claim (2)). Furthermore, the Director stated that
approximately five or six years previously, complainant requested a desk
audit for a similar position but it was not classified at the GS-14 level.
Finally, we find that complainant has not demonstrated that the
agency's articulated reasons for its employment action were a pretext
for discrimination.
Moreover, we note that complainant, on appeal, contends that the agency
failed to address his non-selection claims. We note, however, that
a review of the record reveals that complainant did not object to the
agency's framing of his formal complaint. In addition, we note that
complainant raises new claims of reprisal following the filing of his
complaint We note that these claims were not previously raised. It is
inappropriate for complainant to raise objections to the definition of
his complaint or these new claims for the first time as part of his June
2004 appeal.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
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
December 17, 2004
__________________
Date
1 The record reflects that on January 2, 2004, complainant retired
from agency employment. Moreover, the Commission notes that in its
final decision, the agency inadvertently identified complainant's work
facility as Southern Region 2 instead of Southern Region 8.