01a04499
08-28-2000
Frank Kryfka, Jr., Complainant, v. Rodney E. Slater, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Frank Kryfka, Jr. v. Department of Transportation (Federal Aviation
Administration)
01A04499
August 28, 2000
.
Frank Kryfka, Jr.,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 01A04499
Agency No. 920052
DECISION
Frank Kryfka, Jr.(complainant) timely initiated an appeal from a final
agency decision (FAD) 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.<1> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405). Complainant alleged that he was discriminated
against on the basis of age (54 at time of relevant events) when he
was harassed and treated less favorably than younger employees, leading
to his constructive discharge. In support of this claim, complainant
described the following incidents:
(1) he was restricted from doing his job due to an alleged hearing
problem while a younger employee who also had a hearing problem was not
so restricted. He asserted that his supervisor refused to give him a
temporary job assignment until questions about complainant's hearing
were resolved;
work assignments were made differently than in the past and favored a
younger technician to complainant's detriment;
the agency removed him from extra duties he had enjoyed for years and
gave the duties to a younger employee;
the agency counseled him for log discrepancies, gave him a month to
improve, but then raised more log discrepancies a week later and gave
him only 3 days to respond in writing;
his first-level supervisor (S1) failed to give him credit for what he
did well, but S1 went out of his way to credit a younger technician;
S1 required him to take a first-aid course with no additional help for
doing his job, but allowed a younger technician to work a holiday with
pay to catch up on his work;
the younger technician was allowed to work overtime while complainant was
not, and the younger technician was allowed to accrue compensatory time
while complainant was questioned concerning his efforts to accumulate
compensatory time;
the younger technician was allowed to use his personal vehicle to travel
to work sites without coming to the office first, while complainant
was not allowed to do this;
S1 �[wa]s on a constant witch hunt to try and find reasons or causes
so he [could] justify treating me this way and he [did] not [find]
anything except normal mistakes,� S1 allowed a younger technician and
other supervisors to make comments about complainant that were untrue
and discredited him as a person and a technician;
the agency denied complainant the opportunity to take a Liason
Familiarization Program trip, whereas younger employees were allowed
to take such trips;
management had a younger technician train the new technician rather
than allowing complainant to train him;
he failed to receive assistance that should have been provided on a
certain project.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as an Electronics Technician for the Federal Aviation Administration's
Airway Facilities Sector Field Office in Muskegon, Michigan. Believing
he was a victim of discrimination, complainant sought EEO counseling
and subsequently filed a formal complaint on July 25, 1991. 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.
On March 17, 1994, the agency issued a FAD finding no discrimination.
On appeal, the Commission remanded the complaint for supplemental
investigation, noting that the agency failed to investigate complainant's
allegation of constructive discharge. See Kryfka v. Department of
Transportation, EEOC Appeal No. 01943218 (April 26, 1995). We also
identified the claim as a mixed case complaint. See 29 C.F.R. �
1614.302(a).
The agency conducted a supplemental investigation and issued a second FAD
on August 30, 1996, again finding no discrimination. However, on appeal,
the Commission remanded the complaint again, noting that the FAD failed
to provide the appropriate appeal rights to the Merit Systems Protection
Board (MSPB) in accordance with 29 C.F.R. � 1614.302(d)(3). See Kryfka
v. Department of Transportation, EEOC Appeal No. 01970060 (May 18, 1999).
The agency re-issued the FAD on June 9, 1999, with appropriate appeal
rights and complainant appealed to the MSPB on July 6, 1999.
The MSPB Administrative Judge (AJ) found, without a hearing, that
complainant failed to prove that his retirement was involuntary
and concluded that the MSPB therefore had no jurisdiction over the
complaint. Complainant petitioned this Commission for review. We denied
consideration of the petition, finding that it was no longer a mixed
matter, and redocketed the petition as an appeal from the agency's June
9, 1999 FAD. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.302(c)(2)(ii)). Complainant's
complaint will now be analyzed as a non-mixed case EEO complaint.
In its June 9, 1999 FAD, the agency concluded that complainant failed to
establish that he was discriminated against due to his age or that he was
subjected to a constructive discharge. The agency first concluded that
complainant failed to establish a prima facie case of age discrimination
because he failed to establish that he was treated differently than
similarly situated younger employees. Rather, the agency found that
complainant was treated according to agency policy in the manner that
all other employees were treated.
The agency then concluded that complainant failed to establish that his
working conditions were intolerable, as required to establish constructive
discharge. Specifically, the agency noted that complainant's troubles
stemmed from the fact that a new facility manager was hired who changed
the ways things were done. The agency concluded that the changes made by
management were intended to organize the somewhat loosely-run operation
and while some employees thrived in the new environment, others, like
complainant, preferred the previous way of doing things. Moreover,
the agency noted that several witnesses testified that complainant had
often talked of retirement prior to the events at issue. The agency
concluded that complainant failed to establish that he was constructively
discharged.
CONTENTIONS ON APPEAL
On appeal, complainant submits documents which he alleges were not
included in the investigative file, despite his request for their
inclusion. He then essentially reiterates the allegations he made during
the investigation. The agency asks that its FAD be affirmed.
FINDINGS AND ANALYSIS
Disparate Treatment
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and Reeves v. Sanderson Plumbing Products, Inc.,
U.S. , 2000 WL 743663 (June 12, 2000), the Commission agrees with
the agency that complainant failed to establish that he was discriminated
against on the basis of age.
Complainant established a prima facie case of age discrimination in that
he was subjected to various adverse actions�such as job restrictions,
removal of job duties, lack of overtime�whereas certain younger<2>
technicians were not subjected to these actions. However, the agency
articulated legitimate nondiscriminatory reasons for all of its actions
and complainant failed to establish that these reasons were a pretext
for age discrimination.
For example, complainant alleged that workload was assigned differently
than in the past and that such assignments favored a younger technician.
Complainant's first-line supervisor (S1) testified that he did change the
manner in which workload assignments were made because in November 1990,
the Muskegon Sector Field office became responsible for the workings of
an additional facility. S1 therefore asked the union for input on how
assignments should work. S1 noted that complainant wanted to continue
with the system wherein workload assignments were occasionally switched
between two technicians and felt that the additional workload should
be assumed by another technician (one of the younger comparators, T1).
Because S1 felt this to be unfair, he devised a new system wherein
complainant dealt with all of the local facilities and T1 dealt with
all of the remote facilities. S1 felt that this allowed for better
coverage of all facilities, because it would never be the case that both
technicians were at remote facilities when a technician was needed at a
local facility. Complainant offered no evidence to suggest that his age,
rather than S1's explanation, was the motivation for these assignments.
In fact, it appears that rather than being less favorable than the
assignments of T1, complainant's assignments were simply ones that he
did not prefer.
Similarly, the agency offered a legitimate non-discriminatory reason
for allowing T1 to travel directly to his work station, rather than
first reporting to the main office, while not allowing complainant to
do this. S1 testified that to require T1 to come to the office first,
on days when he was scheduled to work on certain sites, would require
two hours of travel time, given the location of T1's home. Allowing him
to go directly to the site was beneficial to the agency because T1 then
worked a full day. The location of complainant's home made it more
advantageous for him to come to the main facility first. Moreover, S1
testified that complainant never asked to go directly to a work site.
Complainant offered nothing to establish that this explanation was a
pretext for age discrimination.
After a thorough review of the record, we find that the agency offered
legitimate explanations for all of the actions described by complainant
and that complainant failed to establish that these explanations were a
pretext for discrimination. The record establishes that when S1 became
manager, he made across-the-board changes to the work environment and
that these changes affected everyone, not just complainant. It is clear
that complainant did not like these changes and had trouble adjusting
to the new work environment. However, the only evidence complainant
provides that his treatment was based on his age, rather than on general
office policy and performance concerns as the agency asserted, is the
existence of a few younger employees who did not dislike the changes and
received different assignments than he. This, by itself, is not enough
to establish by a preponderance of the evidence that he was subjected
to disparate treatment due to his age.
Harassment
Complainant may assert an ADEA cause of action for harassment if the
discriminatory conduct was so severe or pervasive that it created a
hostile work environment on the basis of his age. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6
(Harris applies to harassment claims on the bases of age and disability
as well as those bases protected under Title VII); Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997). In the
case at hand, as noted above, complainant failed to establish that any
of the treatment he described was motivated by his age. He therefore
failed to establish that he was subjected to age-based harassment.
Constructive Discharge
In a previous decision, Kryfka v. Department of Transportation, EEOC
Appeal No. 01943218 (April 26, 1995), we ordered the agency to process
complainant's constructive discharge allegation. By this, we intended
that the agency would conduct an investigation into this issue. We note,
however, that the investigative report and the FAD submitted to this
Commission after our remand are almost identical to those submitted
before the remand. We admonish the agency for its apparent failure
to fully comply with our previous order and remind the agency of its
duty to develop an impartial and appropriate factual record. See 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.108(b)).
We note, however, that notwithstanding this failing on the agency's
part, none of the events named by complainant as causing him to
involuntarily retire were motivated by discrimination, as discussed
above. The Commission has established three elements which complainant
must prove to substantiate a claim of constructive discharge: (1) a
reasonable person in complainant's position would have found the working
conditions intolerable; (2) conduct that constituted discrimination
against complainant created the intolerable working conditions; and
(3) complainant's involuntary resignation resulted from the intolerable
working conditions. See Walch v. Department of Justice, EEOC Request
No. 05940688 (April 13, 1995). As complainant failed to establish that
he was subjected to discrimination, he cannot meet the second of these
elements and therefore cannot substantiate his claim of constructive
discharge.
CONCLUSION
Accordingly, after a careful review of the record, including
complainant's contentions on appeal and arguments and evidence not
specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 28, 2000
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 In an age discrimination case, complainant may establish a prima face
case by establishing that similarly situated employees significantly
younger than he were treated more favorably in like circumstances. See
Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp.,
EEOC Notice No. 915.002 (September 18, 1996). Here, complainant simply
refers to these comparative employees as �younger� and the record does
not contain the age of these individuals. However, the agency does not
argue that any of the comparative employees referenced by complainant
were not significantly younger than he. We will assume, therefore,
that these individuals are significantly younger than complainant.