Harold W. Krueger, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 13, 1999
01970845 (E.E.O.C. Sep. 13, 1999)

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.