01970845
09-13-1999
Harold W. Krueger, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Harold W. Krueger v. United States Postal Service
01970845
September 13, 1999
Harold W. Krueger, )
Appellant, )
)
v. ) Appeal No. 01970845
) Agency No. 1H-381-1054-94
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On November 12, 1996, Harold W. Krueger (hereinafter referred to as
appellant) filed a timely appeal from the October 10, 1996, final decision
of the United States Postal Service (hereinafter referred to as the
agency) concerning his complaint of unlawful employment discrimination
in violation of the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. �621 et seq. Appellant received the final agency
decision on October 15, 1996. Accordingly, the appeal is timely filed
(see 29 C.F.R. �1614.402(a)) and is accepted in accordance with EEOC
Order No. 960, as amended. For the reasons that follow, the agency's
decision is AFFIRMED.
The issue presented in this appeal is whether the appellant has proven,
by a preponderance of the evidence, that the agency discriminated
against him on the basis of age (DOB 11-21-31) when a younger employee
was assigned to the position of Area Maintenance Technician, PS-8,
Northern Mississippi Area, in 1994.<1>
Appellant filed his formal complaint on October 21, 1994. After an
investigation, appellant was advised of his rights to request a hearing.
He initially requested a hearing, but withdrew his request and sought
a final agency decision (FAD). The agency's FAD found that it did not
discriminate against appellant, and appellant has filed the instant
appeal, without substantive argument.
At the time of the events herein, appellant worked as a Building Equipment
Mechanic, PS-7, in Memphis assigned to the Tennessee District (TD).
In his complaint, appellant alleged discrimination when he learned in
September 1994 that a younger employee (E1) was placed in a position
that had not been posted and to which he asserted that he was entitled
as the more senior employee. Appellant stated that when he learned of
E1's assignment, he complained to his managers (Ms), whom, he stated,
indicated that the position would be posted and expressed surprise at
E1's appointment. See Appellant's memorandum dated August 30, 1994.
In their affidavit statements, the Ms stated that placement of E1 in
the position in the MD was made by MD manager, although neither provided
further explanation of the situation.
As far as can be gleaned from the record, it appears that a reorganization
in 1993 transferred oversight maintenance responsibility for certain areas
in Mississippi to the TD, but assignment of personnel to duties affecting
the new areas continued to be made from the Mississippi District (MD)
using incumbent MD personnel. See Letter, March 30, 1993. In March 1993,
E1 was a maintenance employee in the MD, who had been designated by the
Tupelo office to service those areas, although he was actually domiciled
in the Grenada office. Id. According to a letter from a national union
business agent, it appears that E1 had accepted this assignment with
the promise of a transfer to Tupelo upon the retirement of a mechanic
at Tupelo. See Letter, April 21, 1994. The business agent asserted that
E1 was entitled to the position and should be assigned to the mechanic's
position at Tupelo.<2> Id. The record indicates that E1 was subsequently
"reassigned" to the Tupelo office as a PS-8, effective October 15, 1994.
See Letter April 15, 1994. It is not clear whether this action was a
formal personnel action or if he received a lateral or other transfer that
may have been outside of posting requirements, however. In its FAD, the
agency found that appellant failed to prove that the agency discriminated
against him, in that, he failed to show that his age was a factor or that
it was considered in the agency's action placing E1 in the position.
Generally, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). See Loeb v. Textron, Inc., 600 F.2d 1003
(1st Cir. 1979). Following this established order of analysis in the
matter before us, we may examine the agency's explanation in response
to appellant's assertion of a prima facie case. United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). The Ms
stated that selection and placement of E1 in the position was made by
MD personnel within their responsibilities. This explanation, although
limited, is supported by the documents in the record before us, which show
that oversight rather that managerial responsibility was transferred to
the TD and that E1 apparently had occupied the position or its precursor
prior to the change in oversight authority. We find therefore that the
agency articulated a legitimate, nondiscriminatory reason for its action.
Turning to the third step of the McDonnell Douglas analysis, appellant
must demonstrate by a preponderance of the evidence that the agency's
actions were motivated by discrimination, that is, its articulated reason
was a sham or pretext for discrimination. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993). Under the ADEA, the appellant must show
that his age was a determining factor in the agency's decision, that
is, considerations of age made a difference in the agency's selection
decision. Hazen Paper Company v. Biggins, 507 U.S. 604, 610 (1993)
(age had "a role in the process and a determinative influence on the
outcome").
Appellant has made no claim or argument that his age was a factor in any
action taken by the agency. Appellant's assertion that he was older than
E1 is not sufficient to demonstrate pretext; it is appellant's obligation
to show that the agency's stated reasons were not its true reasons or
that it was motivated by a prohibited factor, i.e., age animus. Further,
there is nothing in the record to show that E1's reassignment to the
Tupelo office in the MD was nothing more than a routine personnel move.
While the agency's investigation admittedly lacks some information,<3>
it presents sufficient evidence to decide the matter before us. For these
reasons, we find that the agency did not discriminate against appellant.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
September 13, 1999
DATE Carlton Hadden, Acting Director
1The Commission's records indicate that appellant filed a previous
complaint alleging discrimination based on age with regard to the same
or a similar position in the same time period. See Agency Complaint
No. 1H-381-1045-94 ("1045 complaint"). Specifically, appellant
contacted an EEO counselor in August 1994 and complained that a younger
employee was awarded the position in November 1993 but asserted that an
EEO counselor directed him to the grievance process at that time. The
Commission ultimately found that the 1045 complaint was properly
dismissed for failure to contact an EEO counselor in a timely manner.
EEOC Appeal No. 01973607 (July 1, 1998). Although close scrutiny of
the record before us shows that the position at issue was the same
position described in the 1045 complaint, the agency makes no reference
to it. Because the instant complaint was not dismissed as raising the
same issue as the 1045 complaint and inasmuch as the agency has processed
the instant matter, we will address appellant's appeal on its merits.
2We note that appellant had filed a grievance in 1993 with regard to E1's
assignment but it was not further processed by the union as of July 1994.
See EEOC Appeal No. 01963515 (January 28, 1997).
3The record before us did not contain the "Affidavit D" referred to and
summarized in the agency's FAD.