Jean Paul J. Kruglewicz, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionDec 17, 2004
01a45723 (E.E.O.C. Dec. 17, 2004)

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.