01A03742
07-03-2002
William H. Ashley, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
William H. Ashley v. Department of the Army
01A03742
July 3, 2002
.
William H. Ashley,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A03742
Agency No. AFBGRE9911J0460
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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. 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 Management Analyst GS-343-13 at the agency's Blue Grass Army Depot,
Richmond, Kentucky facility. Complainant sought EEO counseling and
subsequently filed a formal complaint on January 28, 1998, alleging that
he was discriminated against on the bases of sex (male) and age (DOB
1/25/45) when he was not considered for the position of Budget Analyst.
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 state a prima
facie case of discrimination because he essentially claimed that he did
not receive a lateral reassignment which did not cause him to be harmed.
The agency further found that complainant did not apply or express an
interest in the position and as a consequence, the selecting official
was not aware that complainant wanted to be considered.
Even assuming that complainant had established a prima facie case, the
agency concluded that complainant failed to establish by either direct
or circumstantial evidence that he was discriminated against on the
basis of his sex or age.
On appeal, complainant makes no additional statements. The agency
requests that we affirm its final decision.
ANALYSIS AND FINDINGS
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); 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) we conclude that complainant failed to demonstrate by
a preponderance of the evidence that he was discriminated against on the
basis of his age or sex. In an ADEA case, to establish a prima facie
case of age discrimination, the complainant must show that he was over
40 years of age, a class protected by the ADEA, that he was subjected
to an adverse employment action, and that he was treated less favorably
than other similarly situated employees younger than himself, i.e.,
he was accorded treatment different from that given to persons who are
considerably younger than he. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000); O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308 (1996). While there is no bright-line test for what
constitutes "substantially younger," that term has generally been applied
to age differences in excess of five years. See Hammersmith v. Social
Security Administration EEOC Appeal No. 01A05922 ( March 6, 2002).
Based on this criteria, the Commission finds that complainant established
a prima facie case of sex but not age discrimination in that the employee
(E1) placed non-competitively in the position of Budget Analyst was
female but only a few months younger than complainant. Even assuming
that complainant established a prima facie case of both age and sex
discrimination, we also find that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. The evidence raised some
doubt that complainant even expressed his interest in the position to
the appropriate supervisor but even assuming that based on his veteran's
status he should have been considered, complainant did not overcome the
agency's showing that it had a legitimate non-discriminatory reason for
its actions.
The record established that at some point, complainant's unit was
considered for a reduction in force (RIF) and that his job was
in jeopardy, but the testimony which complainant does not dispute,
indicated that the RIF never took place and his job was not abolished.
The evidence suggested that the personnel unit where E1 was employed
was affected by the RIF and that E1's position was to be abolished.
Based on these facts, complainant is not similarly situated to E1 because
his job was not threatened with elimination as was E1's. According to the
agency, it sought to save E1's employment by placing her in the position
of budget analyst being vacated by another employee who expressed an
interest in a voluntary early retirement option being offered at the time.
Complainant argued that E1 was not qualified for the position, that
the agency ignored his veteran's status in not considering him and that
nepotism played a part in E1 being placed in the position. We find that
this was insufficient to show a discriminatory motive based on his sex
and age. Even if these factors were true, they were not suggestive of
a discriminatory motive. Additionally, complainant did not ultimately
dispute that the agency acted to keep E1 from losing her employment.
Moreover, the record revealed that E1 was just a few months younger than
complainant and there being no other evidence to support his claim of
age discrimination, complainant did not show that �but for his age� he
would have been considered for this position.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final 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
July 3, 2002
Date