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