02A10004_02A10016
06-28-2001
Agency.
Bruce G. Pentland, Nyja Attenborough, John Vernon v. Corporation for
National and Community Service
02A10004, 02A10016, 02A10022
June 28, 2001
.
Bruce G. Pentland, Nyja Attenborough, John Vernon,
Grievants,
v.
Wendy Zenker,
Acting President & Chief Executive Officer,
Corporation for National and Community Service,
Agency.
Appeal Nos. 02A10004, 02A10016, 02A10022<1>
DECISION
INTRODUCTION
Grievants timely initiated appeals of a final agency decision (FAD)
concerning their grievances of unlawful employment discrimination on
the basis of age (over forty years of age)<2> in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. For the reasons stated herein, the FAD is affirmed.
ISSUE PRESENTED
The issue on appeal is whether grievants have established that the agency
discriminated against them individually on the above-referenced basis
when it closed its New York City, New York office and offered each of
them reassignment to the agency's Albany, New York office.
BACKGROUND
During the period in question, the grievants worked at an agency
office in New York City, New York (NYC). Both Grievant Pentland (G1)
and Grievant Vernon (G2) were GS-12, State Program Specialists, and
Grievant Attenborough (G3) was a GS-7, State Program Assistant. All three
grievants were over fifty years of age. The three grievants shared the
NYC office with a Training Coordinator (TC) who was �on loan� to their
office.<3> TC was thirty years of age during the period in question.
In letters dated June 2, 2000, the agency informed all three grievants
and TC that it was closing its NYC office and consolidating it with
the agency's Albany, New York (Albany) office. Grievants were offered
reassignment to their same position in Albany, and were informed that
should they decline reassignment, they could either resign from employment
with the agency or be subject to removal. Either action would entitle
them to an immediate retirement annuity. TC was offered reassignment to
his same position in the agency's Washington, DC office and was informed
that should he decline reassignment, he could either resign or would
be subject to removal, without retirement rights. According to the
record, all three grievants discussed the possibility of reassignment
with the agency. However, G2 and G3 later declined reassignment for
personal reasons and were removed from employment for �failure to accept
a directed reassignment.� G1 initially accepted reassignment to the
agency's Arizona office but, for personal reasons, later withdrew that
acceptance and accepted reassignment to Albany. Grievants, believing
they were victims of discrimination, filed individual grievances under
the negotiated grievance procedure established by their agency and
their representative union. Grievants, in their grievances, alleged
that the agency discriminated against them based on age when it closed
and consolidated its NYC office and forced reassignment or retirement.
G1 alleged further that the agency discriminated against him also based
on age when it did not provide him with phones, computers, an appropriate
workstation, and other items upon his reassignment to Albany.
The agency stated that its NYC office was closed and consolidated with its
Albany office to increase management effectiveness, substantially lower
the cost of leasing office space, facilitate a team approach to project
management and decision making, encourage staff interaction on critical
issues, and improve staff consistency on policy interpretation and
implementation. The agency inferred that consolidation was easier once
the number of staff in the NYC was reduced. The agency stated further
that it has the right to determine the structure of its organization.
Grievants alleged that the reasons articulated by the agency for its
actions are pretextual because (1) the closure and consolidation moved
the agency away from its concentration of grantees, (2) the closure
was not effectuated until the NYC office consisted primarily of staff
members over the age of 50, (3) the agency did not attempt to resolve any
problems it had with the staff of the NYC office prior to the closure, (4)
the agency did not attempt to locate less expensive office space in NYC,
(5) the costs of commuting from Albany to NYC to conduct on-site visits to
grantees would lessen any other savings the agency might expect, (6) staff
members reassigned between March 1997 and March 2000, all of whom were
under 40 years of age, were allowed to select their reassignment offices,
(7) persons hired for the positions G2 and G3 would have held with
reassignment were significantly younger than they were, (8) the Albany
office was not prepared for G1's reassignment, (9) the agency action at
issue here was inconsistent with actions in other agency offices, and (10)
the agency's previous actions displayed a movement toward hiring persons
under the age of 40. The agency issued a decision denying the Step 2
grievances of all three grievants. Appeals from each grievant followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.401(d), �[a] grievant may appeal the
final decision of the agency, the arbitrator or the Federal Labor
Relations Authority (FLRA) on the grievance when an issue of employment
discrimination was raised in a negotiated grievance procedure that
permits such issues to be raised.�
When a grievant relies on circumstantial evidence to prove an agency's
discriminatory intent or motive, there is a three step, burden-shifting
process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Although
this analysis was developed in the context of Title VII, it is equally
applicable to claims brought under the ADEA. Loeb v. Textron, Inc.,
600 F.2d 1003 (1st Cir. 1979). The initial burden is on the grievant
to establish a prima facie case of discrimination. McDonnell Douglas,
411 U.S. at 802. The burden then shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Id. If the agency is successful, the grievant must then prove, by a
preponderance of the evidence, that the legitimate, nondiscriminatory
reason articulated by the agency is merely pretext for its discrimination.
McDonnell Douglas, 411 U.S. at 804. The burden of persuasion always
remains with the grievant.
Because the agency articulated a legitimate, nondiscriminatory reason
for its action, i.e., business efficiency, we may proceed directly to
determining whether grievants satisfied their burden for showing pretext.
Haas v. Department of Commerce, EEOC Request No. 05970837 (July 7,
1999)(citing U.S. Postal Service Board v. Aikens, 460 U.S. 711, 713-14
(1983)). Grievants may do this in one of two ways, either directly, by
showing that a discriminatory reason more likely motivated the agency,
or indirectly, by showing that the agency's proffered explanation is
unworthy of credence. Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 256 (1981). Essentially, the fact finder must be persuaded by
the grievants that the agency's articulated reason was false and that
its real reason was discrimination. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 515 (1993).
As indicated above, grievants gave at least ten reasons why they believe
the agency's actual reasons for its actions were discriminatory. The
Commission, however, finds that grievants failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. TC, a comparator employee cited by
grievants, also suffered the closure and consolidation of the NYC office
and ultimately was reassigned to an office outside of New York state.
The four former staff members of the NYC office, who were also cited as
comparator employees by grievants, either were competitively selected
for reassignment, were placed in vacant positions in their reassignment
offices after the competitive selection process proved unsuccessful for
filling the vacancies, or were reassigned to offices in accordance with a
long term plan of the agency. One of the four former staff members held
a position different from that of G1 and G2 and all four held a position
different than that of G3. In addition, two of the three individuals
hired for a State Program Specialist position in Albany after the period
in question were over the age of 40 and one of the two individuals hired
for a State Program Assistant position in Albany after the period in
question was 40 years of age. A significant number of agency offices
in various states consist only of staff members over the age of 40.
The agency worked with grievants in an attempt to either place them in
Albany or in an office with a vacancy. The grievants have failed to
prove discrimination based on age.
CONCLUSION
After a careful review of the record, including grievants' contentions
on appeal, the agency's response, and arguments and evidence not
specifically addressed in this decision, we AFFIRM the FAD's finding of
no discrimination based on age.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the grievant 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).
GRIEVANT'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 grievance 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 grievance.
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 28, 2001
__________________
Date
1Each of the above-named grievants filed a grievance under the negotiated
grievance procedure established by the agency and the grievants'
representative union. Pursuant to 29 C.F.R. � 1614.606, the Commission
consolidated the grievances because they arose out of the same agency
action and because the grievants requested consolidation.
2Grievant Attenborough briefly mentioned reprisal (prior EEO opposition
activity) as a basis of discrimination against her, but the agency did
not address reprisal in its decision and age is the focal point of all
three grievances.
3According to the record, at one time, there were additional persons in
the NYC office but between March 1997 and March 2000, four persons who
were all under the age of 40 were reassigned to other agency offices
for various reasons.