0120083183_r-_Casaus-age-ND-Merits_Short_Form
09-16-2008
Blas C. Casaus, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Blas C. Casaus,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 0120083183
Agency No. DECA-00164-2007
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 3, 2008, final decision concerning his equal
employment opportunity (EEO) complaint, alleging employment discrimination
in violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
Complainant alleged that the agency discriminated against him on the basis
of age (62) when he learned his temporary promotion to the position of
Meatcutter, WG-07, was terminated.
The record reveals that complainant worked as a Meatcutter, WG-05,
at the Meat Department, Defense Commissary Agency, Kirtland Air Force
Base, Albuquerque, New Mexico. He received a temporary promotion from
WG-05 to WG-07, effective February 4, 2007. The original notification
of personnel action (SF-50) indicated a not to exceed (NTE) date of
September 30, 2007. A subsequent SF-50 was approved on May 4, 2007,
to cancel the original NTE of September 30, 2007. An SF-52 was then
originated by the Human Resources Specialist, to give a NTE date of June
3, 2007, on the temporary promotion. On June 15, 2007, complainant's
supervisor submitted an SF-52 for a change to lower grade for complainant
terminating his temporary promotion.
Complainant contends that, because of his age, the SF-52 action was
backdated to prevent him from being in the position for more than 120 days
because at that point he would have had to been offered the position.
Complainant maintains that younger workers were promoted to the WG-07
level with less time in the position than he had. Complainant filed a
formal complaint regarding this matter on October 16, 2007.
Following an investigation by the agency, complainant requested that
the agency issue a final agency decision (FAD) regarding this matter.
The FAD found no discrimination. Specifically, the FAD found that the
agency had articulated legitimate, nondiscriminatory reasons for its
actions, namely, that: the promotion was only supposed to be temporary;
complainant and another employee who had been placed in temporary
promotions were not aware of the change to the NTE date made on May 4,
2007, which essentially prevented them from going over the 120 day date;
and the supervisor who returned complainant to the WG-05 position was
not aware of complainant's age at the time he requested the SF-52 and
was not the supervisor that initiated the temporary promotion since he
was not employed by the agency at that time. The agency also maintained
that it was not unusual for management to amend an SF-52 to terminate a
temporary promotion due to the 120-day deadline. The agency acknowledged
that there was a procedure for using temporary promotions to promote
employees to higher grade levels; but if a statement was not made
on the announcement to indicate the position would become permanent,
then the employee would be returned to the former position. In this
instance, no such statement was made in connection with complainant's
temporary promotion; therefore, he was returned to his former grade.
The agency maintained that complainant's age had nothing to do with
his return to his former grade level. Accordingly, the agency found
that complainant failed to show that the articulated nondiscriminatory
reasons were pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision.
The Commission agrees that, even if we assume complainant established
a prima facie case of age discrimination, he failed to show that the
agency's nondiscriminatory reasons were pretext for discrimination.
We find the record shows that complainant was afforded a temporary
promotion that was not to exceed June 4, 2007, and after a new supervisor
began serving in the position, he terminated both temporary promotions on
their NTE dates. We find that complainant has not set forth any evidence
which indicates that age was a factor in this decision. Accordingly,
we find the preponderance of the evidence of record does not establish
that discrimination occurred. The FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
___09/16/2008_______________
Date
4
0120083183
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036