01981274
06-13-2001
John L. Aarnink, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
John L. Aarnink v. Department of Transportation (Federal Aviation
Administration)
01981274
June 13, 2001
.
John L. Aarnink,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01981274
Agency No. DOT-6-97-6040
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of 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. Complainant alleged that he was discriminated against
on the basis of age (58) during the restructuring of the Anchorage,
Alaska Air Route Traffic Control Center (ZAN) when:
(1) Five employees, who were from 19 to 22 years younger than complainant,
were hired by the agency which then assigned to two of them his duties,
staff, and office;
(2) Improper personnel practices were employed in that 30-day notices
of reassignment were not issued, nor were personnel actions (SF-50s)
with proper position descriptions and duty assignments outside of areas
of responsibility;
(3) Position descriptions were manipulated to circumvent Office of
Personnel Management (OPM) laws and regulations;
(4) The Air Traffic Division Manager, Deputy Division Manager, Facility
Manager, Deputy Facility Manager, and Facility Operations Manager failed
to follow Orders and Directives affecting duties and assignments; and
(5) On December 12, 1996, at a Stewardship Agreement meeting with agency
management, complainant was singled out to sign a Stewardship Agreement
which was an avenue to eventually push him out of the agency and the
job market because of his age.
The record reveals that during the relevant time, complainant was employed
as an Assistant Manager, Plans and Programs, GS-2152-14, at the agency's
ZAN facility. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed a formal complaint on
February 20, 1997. At the conclusion of the investigation, complainant
either requested that the agency issue a final decision or failed to
respond within the time period specified in 29 C.F.R. � 1614.108(f)
after being informed of his right to request a hearing before an EEOC
Administrative Judge.<1> Accordingly, the agency issued the instant
final decision.
In its FAD, the agency concluded that complainant was not discriminated
against as alleged. The agency found that, based upon the facts
established in the investigation, complainant did not show that age was
a determining factor in the sense that �but for� his age, complainant
would not have been subjected to the actions at issue. Nor, the agency
further found, did complainant show that the legitimate, nondiscriminatory
reasons articulated by the agency for its actions were a pretext to mask
a discriminatory animus.
On appeal, complainant contends that numerous issues in the FAD
indicate a general lack of understanding by the investigator, that many
statements made in the Report of Investigation were not factual, that
the investigator failed to interview managers that could verify claims
of the complainant, and that the Report was biased towards the agency.
The agency did not respond to the contentions made by complainant.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d 292,
310 (5th Cir. 1981); 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 further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that
Therefore, after a careful review of the record, including complainant's
contentions on appeal, 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
June 13, 2001
Date
1Although the complaint file does not contain a copy of the letter so
informing complainant of this option, as required by EEOC Regulation
29 C.F.R. � 1614.108(f), complainant does not claim on appeal that he
desired a hearing, and we therefore assume that the letter was sent.