Agency.

Equal Employment Opportunity CommissionNov 12, 2002
02A10001 (E.E.O.C. Nov. 12, 2002)

02A10001

11-12-2002

Agency.


George R. Lutfy v. Department of the Army

02A10001

11-12-02

.

George R. Lutfy,

Grievant,

v.

Thomas E. White,

Secretary,

Department of the Army,

Agency.

Appeal No. 02A10001

DECISION

INTRODUCTION

On March 9, 1999, George R. Lutfy (the grievant) filed an appeal with

the Equal Employment Opportunity Commission (the Commission) from

the January 26, 1999, arbitrator's decision, concerning his grievance

filed against the agency, dated November 20, 1997. In his grievance,

the grievant alleged that the agency discriminated against him 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 arbitrator's decision.

ISSUE PRESENTED

The issue presented is whether the arbitrator correctly determined that

the grievant had not been subjected to discrimination based on age when

he was separated from the agency.

BACKGROUND

The record reveals that during the relevant time, the grievant was

employed as a Microform Equipment Operator, GS-5, at the agency's

Tank-Automotive & Armaments Command, Warren, Michigan facility.

The grievant filed a grievance on November 20, 1997, alleging that

the agency had violated two articles of the collective bargaining

agreement (CBA), and that he was discriminated against on the basis of

age (D.O.B. August 12, 1937) when he was separated from his position,

pursuant to a reduction-in-force (RIF), effective November 7, 1997.

At the conclusion of the three-step, internal grievance process, the

grievant and the union appealed the third-step decision to an arbitrator.

The arbitrator held a hearing and received briefs on the subject, and

rendered a decision finding that the CBA articles cited by the union had

not been violated, and that the grievant had not shown that he had been

the victim of age discrimination.

On appeal, the grievant contended at length that he has been treated

unfairly by the agency over a number of years, and requested a hearing

before the EEOC. The agency requested that we affirm the arbitrator.

Additionally, it argued that the grievant did not file his appeal in a

timely fashion, and that the appeal should be dismissed.

ANALYSIS AND FINDINGS

Initially, we note that the grievant claims he did not receive a copy of

the arbitrator's decision until February 13, 1999. Under the regulations

found at 29 C.F.R. Part 1614, appeals to the Commission must be filed

within thirty (30) calendar days after a grievant receives the agency's

final decision. 29 C.F.R. � 1614.402(a). Appeals are deemed filed on the

date received by the Commission, unless postmarked earlier. 29 C.F.R. �

1614.604(b). The grievant's appeal was postmarked on March 9, 1999,

and received by the Commission on March 16, 1999. The postmark date is

within the 30-day time frame specified by the regulations for filing an

appeal. The agency also argued that the arbitrator's decision should be

deemed to have been received by the grievant on the date that his union

representative received the decision, January 27, 1999. Under EEOC

Regulation 29 C.F.R. � 1614.402(b), if the grievant is represented

by an attorney, the 30-day time period is calculated based upon the

receipt of the document by the attorney. There is no indication in

the record however, that the union representative was also an attorney,

and therefore, the time frame would begin on the date that the grievant

received the decision. Therefore, we deem that the appeal filed by the

grievant was timely filed.

EEOC Regulation 29 C.F.R. � 1614.401(d) provides that a grievant

may appeal to the Commission from a final decision of the agency, the

arbitrator or the Federal Labor Relations Authority on a grievance when an

issue of employment discrimination was raised in a negotiated grievance

procedure that permits such issues to be raised. The Commission will

only review that portion of the arbitrator's decision which pertains

to the grievant's employment discrimination claim, as it does not have

jurisdiction over any alleged violations of the CBA. We also note that

because the grievant pursued his claim through the grievance process,

he is not entitled under the regulations to a hearing before an EEOC

Administrative Judge. 29 C.F.R. � 1614.301(a).

The arbitrator found that the grievant presented his claim with �rather

vague testimony� and did not present any written arguments pertaining

to his discrimination claim in his post-hearing brief. He found that

the grievant's claim was based on his belief that he should not have

been subject to the RIF in that in the period of years leading up to

the 1997 RIF he should have been promoted to other positions which,

presumably, would have preserved his employment with the agency. The

arbitrator found that as the grievance pertained only to the grievant's

separation, any other claims were untimely and not properly raised in

this forum. He also found that the grievant did not present any evidence

of discrimination beyond his own conjecture that he would have been

promoted absent discrimination. The arbitrator further concluded that

even had the grievant presented enough to have shown a prima facie case

of age discrimination, the agency presented legitimate, nondiscriminatory

reasons which the grievant had not shown to be pretext for discrimination.

The agency eliminated 141 positions at the grievant's facility pursuant

to a shortage of funds, and there were no vacancies for which the grievant

qualified such that he would not have been separated from the agency.

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For grievant to prevail, he must first establish a prima

facie case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that a

prohibited consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). See also Loeb v. Textron, 600 F.2d 1003 (1st

Cir. 1979). The burden then shifts to the agency to articulate a

legitimate, nondiscriminatory reason for its actions. Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency

has met its burden, the grievant bears the ultimate responsibility to

persuade the fact finder by a preponderance of the evidence that the

agency acted on the basis of a prohibited reason. St. Mary's Honor

Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

grievant has shown by a preponderance of the evidence that the agency's

actions were motivated by discrimination. U.S. Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department

of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson

v. Department of Health and Human Services, EEOC Request No. 05900467

(June 8, 1990); Washington v. Department of the Navy, EEOC Petition

No. 03900056 (May 31, 1990).

Assuming arguendo that the grievant established his prima facie case

of age discrimination, we turn to the issue of whether the agency

has articulated legitimate, nondiscriminatory reasons for its actions.

We find that it has in that there was a shortage of funds which the agency

managed by instituting a RIF, and eliminating 141 positions, including

the grievant's. The agency also presented testimony that there were no

open positions to which the grievant could have been transferred in lieu

of separation.

The Commission further finds that the grievant failed to present evidence

that more likely than not, the agency's articulated reasons for its

actions were a pretext for discrimination. In reaching this conclusion,

we note that the grievant presented no other evidence, aside from his

own assertions, to substantiate his claim.

Therefore, after a careful review of the record, including grievant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the decision of

the arbitrator.

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

___11-12-02_______________

Date