Randy Wolf, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMar 27, 2003
01a21091 (E.E.O.C. Mar. 27, 2003)

01a21091

03-27-2003

Randy Wolf, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.


Randy Wolf v. Department of the Air Force

01A21091

March 27, 2003

.

Randy Wolf,

Complainant,

v.

Dr. James G. Roche,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 01A21091

Agency No. 9V1M99072

DECISION

Complainant timely initiated an appeal from a final agency decision

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. The appeal is accepted pursuant to

29 C.F.R. � 1614.405. For the following reasons, the Commission affirms

the agency's final decision.

The record reveals that during the relevant time, complainant was

employed as a Materials Handler, WG-6907-06, at the agency's KC-135

Section, Aircraft Production Branch, Aircraft Production Division,

Aircraft Directorate, Oklahoma City Air Logistics Center, Tinker Air

Force Base, Oklahoma. Complainant sought EEO counseling and subsequently

filed a formal complaint on December 31, 1998, alleging that he was

discriminated against on the basis of age (sixty three) when, from May

10, 1990 to December 1998, he was not reassigned.

The agency dismissed the complaint as untimely and for failure to state

a claim. Specifically, the agency's dismissal held that complainant

only alleged three specific incidents of non-reassignment; one of which

did not occur, another of which resulted in a downgrade. Regarding the

third non-reassignment identified with specificity, the agency held

that because complainant was not qualified for the reassignment (it

was a lower grade than the position he occupied), he failed to show

how he suffered a harm with respect to a term, condition or privilege

of employment, and thus dismissed the allegation for failure to state

a claim. The complainant appealed the dismissal to the Commission,

which vacated the decision to dismiss and remanded the matter to the

agency for a supplemental investigation. See Wolf v. Department of the

Air Force, EEOC Appeal No. 01993337 (January 18, 2001).

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. When

complainant failed to respond within the time period specified in 29

C.F.R. � 1614.108(f), the agency issued a final decision in which it found

no discrimination. In its decision, the agency essentially assumed that

complainant had made out a prima facie case of discrimination regarding

the three specified incidents of non-reassignment, and then found that

complainant failed to present evidence proving that the agency's stated

reasons were a pretext for discrimination. The agency did not make a

finding as to the unspecified incidents of non-reassignment. Complainant

appealed the agency's decision. On appeal, complainant makes no new

contentions, and the agency requests that we affirm its final decision.

Unspecified Incidents of Non-Reassignment

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,

.106(a). The Commission's federal sector case precedent has long defined

an "aggrieved employee" as one who suffers a present harm or loss with

respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994). Because complainant did not indicate

with specificity the other non-reassignments to which he should have been

reassigned, even upon being asked to do so during the investigation, this

Commission finds that he failed to prove that he suffered a harm or loss

concerning a term, condition, or privilege of employment. Accordingly,

those non-reassignments are dismissed for failure to state a claim.

Specified Incidents of Non-Reassignment

Although the initial inquiry in a discrimination case usually focuses

on whether the complainant has established a prima facie case, following

this order of analysis is unnecessary when the agency has articulated a

legitimate, nondiscriminatory reason for its actions. See Washington

v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In such cases, the inquiry shifts from whether the complainant has

established a prima facie case to whether s/he has demonstrated by a

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

Here, the agency has stated legitimate, nondiscriminatory reasons for its

actions. Specifically, the agency stated that one of the reassignments

complainant alleges he was denied, namely, placement into a position in

the Planning Office, never occurred. Regarding the second reassignment,

the agency stated, inter alia, that it was a GS-1670-09 position and

complainant did not meet the minimum requirements for a position in the

GS-1670 career field at the GS-9 level. Finally, regarding the third

specified reassignment, the agency stated that it concerned a position

where the selectee was placed in a GS-5 position, and that complainant

was not considered for the position because he encumbered a position

with a higher pay grade.

Because the agency has proffered a legitimate, nondiscriminatory reason

for the alleged discriminatory events, complainant now bears the burden

of establishing that the agency's stated reason is merely a pretext for

discrimination. Shapiro v. Social Security Administration, EEOC Request

No. 05960403 (December 6, 1996). Complainant can do this by showing

that the agency was motivated by a discriminatory reason. Id. (citing

St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In this case,

complainant failed to produce any evidence indicating the agency's stated

reasons for its actions were designed to mask discriminatory animus.

Therefore, after a careful review of the record and arguments and

evidence not specifically addressed in this decision, we affirm the

final agency decision.

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

March 27, 2003

__________________

Date