01a21091
03-27-2003
Randy Wolf, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Randy Wolf v. Department of the Air Force
01A21091
March 27, 2003
.
Randy Wolf,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A21091
Agency No. 9V1M99072
DECISION
Complainant timely initiated an appeal from a final agency decision
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. For the following reasons, the Commission affirms
the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Materials Handler, WG-6907-06, at the agency's KC-135
Section, Aircraft Production Branch, Aircraft Production Division,
Aircraft Directorate, Oklahoma City Air Logistics Center, Tinker Air
Force Base, Oklahoma. Complainant sought EEO counseling and subsequently
filed a formal complaint on December 31, 1998, alleging that he was
discriminated against on the basis of age (sixty three) when, from May
10, 1990 to December 1998, he was not reassigned.
The agency dismissed the complaint as untimely and for failure to state
a claim. Specifically, the agency's dismissal held that complainant
only alleged three specific incidents of non-reassignment; one of which
did not occur, another of which resulted in a downgrade. Regarding the
third non-reassignment identified with specificity, the agency held
that because complainant was not qualified for the reassignment (it
was a lower grade than the position he occupied), he failed to show
how he suffered a harm with respect to a term, condition or privilege
of employment, and thus dismissed the allegation for failure to state
a claim. The complainant appealed the dismissal to the Commission,
which vacated the decision to dismiss and remanded the matter to the
agency for a supplemental investigation. See Wolf v. Department of the
Air Force, EEOC Appeal No. 01993337 (January 18, 2001).
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision in which it found
no discrimination. In its decision, the agency essentially assumed that
complainant had made out a prima facie case of discrimination regarding
the three specified incidents of non-reassignment, and then found that
complainant failed to present evidence proving that the agency's stated
reasons were a pretext for discrimination. The agency did not make a
finding as to the unspecified incidents of non-reassignment. Complainant
appealed the agency's decision. On appeal, complainant makes no new
contentions, and the agency requests that we affirm its final decision.
Unspecified Incidents of Non-Reassignment
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). Because complainant did not indicate
with specificity the other non-reassignments to which he should have been
reassigned, even upon being asked to do so during the investigation, this
Commission finds that he failed to prove that he suffered a harm or loss
concerning a term, condition, or privilege of employment. Accordingly,
those non-reassignments are dismissed for failure to state a claim.
Specified Incidents of Non-Reassignment
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether s/he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Here, the agency has stated legitimate, nondiscriminatory reasons for its
actions. Specifically, the agency stated that one of the reassignments
complainant alleges he was denied, namely, placement into a position in
the Planning Office, never occurred. Regarding the second reassignment,
the agency stated, inter alia, that it was a GS-1670-09 position and
complainant did not meet the minimum requirements for a position in the
GS-1670 career field at the GS-9 level. Finally, regarding the third
specified reassignment, the agency stated that it concerned a position
where the selectee was placed in a GS-5 position, and that complainant
was not considered for the position because he encumbered a position
with a higher pay grade.
Because the agency has proffered a legitimate, nondiscriminatory reason
for the alleged discriminatory events, complainant now bears the burden
of establishing that the agency's stated reason is merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). Complainant can do this by showing
that the agency was motivated by a discriminatory reason. Id. (citing
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In this case,
complainant failed to produce any evidence indicating the agency's stated
reasons for its actions were designed to mask discriminatory animus.
Therefore, after a careful review of the record and arguments and
evidence not specifically addressed in this decision, we affirm the
final agency decision.
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
March 27, 2003
__________________
Date