0120113006
10-26-2011
Gary J. Barard, Complainant, v. Arne Duncan, Secretary, Department of Education, Agency.
Gary J. Barard,
Complainant,
v.
Arne Duncan,
Secretary,
Department of Education,
Agency.
Appeal No. 0120113006
Agency No. ED2010OIG0081
DECISION
On May 29, 2011, Complainant filed an appeal from the Agency’s April 29,
2011 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. The Commission deems the appeal timely and accepts it for
de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following
reasons, the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was
a rehired temporary Auditor with the Agency’s Office of Inspector
General in Atlanta, Georgia. On September 17, 2010, Complainant filed
an EEO complaint alleging that the Agency discriminated against him on
the basis of age (64) when, on June 11, 2010, he received a letter from
the Atlanta Regional Inspector General informing him that his temporary
appointment would be terminated on June 18, 2010.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). In accordance
with Complainant’s request, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected him to discrimination as
alleged.
CONTENTIONS ON APPEAL
In his appeal, Complainant contends that the EEO investigator failed
to follow-up with his arguments relevant to his claim of pretext,
which precluded him from establishing age discrimination. Complainant
also argues that that the Agency failed to produce “correspondence or
documentation supporting [sic] the decision to terminate Complainant”
which was requested by the EEO investigator.1
ANALYSIS AND FINDINGS
The record shows that Complainant’s second-line supervisor (S2)
(age 52) made the decision to terminate Complainant from his Auditor
position because he was only hired to work on the American Recovery
Reinvestment Act (ARRA) audits which were winding down. S2 states
that sufficient ARRA work was a condition for the temporary position.
While S2 was aware of Complainant’s age, she testified that age was
not a factor in her decision.
Complainant's first-level supervisor (S1) (age 47) states that on May
17, 2010, he spoke with Complainant and explained to him that audits in
the region were slowing down, and they were not getting any new audits
in Region IV. S1 explained that Complainant was ultimately terminated
because he was only authorized to conduct Recovery Act audits which
had diminished. S1 further explains that the only way Complainant’s
employment could have continued was if there was additional ARRA audits
assigned to the region.
Former Auditor (over 40) (C1) testified that he was also a rehired
Auditor. C1 states his understanding of the circumstances behind
Complainant's termination is that his work had been completed. C1 states
he has no reason to believe Complainant's termination was based on age
as they were both hired to conduct ARRA audits and not allowed to perform
any other work.
As evidence of pretext, Complainant argues that additional ARRA work
existed as it is his understanding that the Atlanta office has begun work
on ARRA audits in the state of Alabama. Complainant also contends that S2
wished to eliminate older auditors to make room for younger employees to
engage on ARRA work. Complainant contends S2 informed him that a new,
younger staff was being brought in to perform additional ARRA work,
but S2 denies this claim and states that no additional hires have been
made with respect to ARRA work.
Complainant submitted no evidence to corroborate his claims that his work
was to be taken over by younger employees, and he did not submit evidence
to rebut management's contention that ARRA work was coming to an end.
In addition, testimonial evidence from his co-worker, C1, who is also
a member of Complainant’s protected class, corroborated management's
reasons for the termination.
The Agency noted that when Complainant was rehired as a temporary employee
he was fully aware of the circumstances of his employment and that his
position could end once the work was complete pursuant to Agency policy.
Based upon the evidence in the record, the Agency concluded that S1 and
S2 articulated legitimate, non-discriminatory reasons for the decision to
terminate Complainant’s employment. In addition, the Agency concluded
that Complainant failed to present evidence, beyond his assertions, that
management's articulated reasons were a pretext for age discrimination.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s
final decision.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
October 26, 2011
__________________
Date
1 Complainant also reasserts the allegations previously made in his
EEO complaint.
2 Upon review of the record, we find that the EEO investigation was
adequate and complete in accordance with EEO regulations. We note that
Complainant could have requested a hearing in which he would have had an
opportunity to request additional information from the Agency through the
discovery process but failed to do so. Accordingly, we are not persuaded
by his arguments on appeal. We note that the preponderance of the record
does not support Complainant’s uncorroborated assertions that S2 made
age-based comments during the termination meeting on May 25, 2010.
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01-2011-3006
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013