Burzynski v. Cohen

• Decision Date: 30 January 2001
• Docket Number: No. 99-4298,99-4298
• Citation: 264 F.3d 611
• Parties: (6th Cir. 2001) Al Burzynski, Administrator of the Estate of Alfred W. Halevan, deceased, Plaintiff-Appellant, v. William S. Cohen, Secretary of Defense, Defendant-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 611

264 F.3d 611 (6th Cir. 2001)

Al Burzynski, Administrator of the Estate of Alfred W. Halevan, deceased, Plaintiff-Appellant, v. William S. Cohen, Secretary of Defense, Defendant-Appellee.

No. 99-4298

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: January 30, 2001

Decided and Filed: August 23, 2001

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 98-00333, James L. Graham, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Teresa L. Cunningham, Florence, Kentucky, for Appellant.

Randall E. Yontz, ASSISTANT UNITED STATES ATTORNEY, Columbus, Ohio, for Appellee.

Before: JONES and COLE, Circuit Judges; NUGENT, District Judge^*.

OPINION

NATHANIEL R. JONES, Circuit Judge.

Plaintiff-Appellant, Al Burzynski, administrator of the estate of Alfred Halevan, deceased ("Halevan") appeals the district court's order of summary judgment, which dismissed all but one of Halevan's claims arising under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a, and Title VII of the 1964 Civil Rights Act ("Title VII"), 42 U.S.C. §2000e-16. The subsequent trial on the remaining claim (arising under the ADEA) resulted in a finding for the defendant, which Halevan also appeals. For the reasons provided below, weAFFIRM the district court's order of summary judgment as well as the verdict in favor of the defendant.

I. BACKGROUND

Halevan is a former employee of the Defense Finance and Accounting Service ("DFAS"), a federal agency within the Department of Defense. On March 29, 1994, Halevan applied for the position of supervisory accountant, grade level GS-510-13, Job Opportunity Announcement ("JOA") 94-088-LK. That position was awarded to Barbara Innskeep, who was twenty-nine years old at the time and twenty-seven years younger than Halevan.

Halevan filed an administrative complaint with DFAS on August 5, 1994, alleging that his non-selection for the GS-510-13 position, JOA 94-088-LK, was based on age discrimination. In his charge, Plaintiff referred to a pattern established by the defendant in its hiring practices for the last six vacancy announcements, noting that those positions were filled by persons under forty years of age. DFAS issued a final decision on plaintiff's complaint on April 2, 1996, and found that there was no discrimination. Plaintiff pursued an appeal to the Equal Opportunity Employment Commission ("EEOC"), which ultimately affirmed the agency's decision.

On April 1, 1996, Halevan filed a second administrative complaint with DFAS contesting his non-selection for the position of staff accountant, GS-510-13, JOA 96-046-EB, on the basis of age and sex discrimination. In support of his age discrimination claim, Halevan alleged that the person selected was not qualified for the position. He further alleged that thirteen of the last fifteen persons selected for GS-510-13 positions were female. Halevan failed to appear at an EEOC hearing scheduled on March 5, 1997, and his case was remanded to DFAS for further administrative processing. On April 16, 1997, DFAS issued a final decision denying Halevan's age and sex discrimination complaint.

Halevan retired from DFAS on October 16, 1996. On February 19, 1997, Halevan filed a third administrative complaint with DFAS alleging that his retirement amounted to a constructive discharge caused by harassment, disparate treatment, and reprisal. In September of 1997, DFAS issued a final agency decision finding no discrimination. Halevan appealed to the Merit Systems Protection Board ("MSPB") on October 29, 1997. On November 25, 1997, the MSPB dismissed the petition on the basis that the plaintiff failed to advance a non-frivolous allegation that his retirement was involuntary or that a reasonable person in his situation would have felt compelled to resign, and that therefore the MSPB lacked jurisdiction. The opinion notified the plaintiff that the decision would become final on December 30, 1997, and his time limit for appeal to the Federal Circuit Court of Appeals would run from that date. Halevan did not pursue an appeal to the Federal Circuit Court of Appeals.

Halevan filed a complaint with the district court on March 30, 1998. In Count I of the complaint, Halevan alleged that during the course of his employment with DFAS, he applied for over forty GS-510-13 positions for which he was qualified, and that persons who were substantially younger than him were selected for those positions. In Count II, plaintiff alleged that the defendant had maintained a pattern of age discrimination in violation of the ADEA. In Count III, plaintiff alleged that the defendant discriminated against him because of his sex in violation of Title VII. The defendant brought a partial motion to dismiss pursuant to Fed. R. Civ. P. 12 (b)(6) arguing that all of plaintiff's claims, except one,¹ should be dismissed due to plaintiff's failure to properly exhaust his administrative remedies and comply with the time limits for filing an action under Title VII and the ADEA². The district court ultimately agreed and granted defendant's motion.

After a bench trial on the sole claim to survive summary judgment (plaintiff's non-selection for JOA 94-088-LK), the district court found that Halevan had established a prima facie case of discrimination under the ADEA and that defendant had offered a non-discriminatory reason for not promoting the plaintiff. However, the district court concluded that Halevan had failed to prove that defendant's non-discriminatory rationale for the non-promotion was a pretext for discrimination. Accordingly, the district court found that the defendant failed to satisfy his ultimate burden of proving that his non-promotion to the 94-088-LK vacancy for the position of supervisory accountant was the result of age discrimination.

II. ANALYSIS

A. Standard of Review

Halevan appeals both the district court's bench trial decision and its order of summary judgment. In considering a district court's decision following a bench trial, this court reviews findings of fact under the clearly erroneous standard. See Fed.R.Civ.P. 52(a); American Postal Workers Union v. United States Postal Service, 871 F.2d 556, 561 (6th Cir. 1989). Conclusions of law, on the other hand, are reviewed de novo. See Affiliated FM Ins. Co. v. Owens-Corning Fiberglas Corp., 16 F.3d 684, 686 (6th Cir.1994). We also review de novo the district court's grant of summary judgment. See Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). Summary judgment is appropriate when there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).

B. First Administrative Complaint

The ADEA is expressly applicable to federal governmental employees, who are treated separately from private employees under the statute. See 29 U.S.C. § 633a. The Supreme Court has concluded that Section 633a provides:

two alternative routes for pursuing a claim of age discrimination. An individual may invoke the EEOC's administrative process and then file a civil action in federal district court if he is not satisfied with his administrative remedies. See 29 U.S.C. § 633a(b) and (c). A federal employee complaining of age discrimination, however, does not have to seek relief from his employing agency or the EEOC at all. He can decide to present the merits of the claim to a federal court in the first instance. See § 633a(d).

Stevens v. Dep't of Treasury, 500 U.S. 1, 5-6, 111 S.Ct. 1562, 1566, 114 L.Ed. 2d. 1 (1991). If the employee elects to pursue his administrative remedies, he "must initiate contact with a Counselor within 45 days of the effective date of the action." 29 C.F.R. § 1614.105 (a)(1) (2000). ³ In the case at bar, Halevan's initial contact with an Equal Employment Opportunity ("EEO") counselor was on June 6, 1994, when he alleged that his non-selection for JOA 94-088-LK was discriminatory. This claim was filed within the 45-day time limit. However, all of the other non-selections that Halevan referenced both in his 1994 EEO complaint and his complaint to the district court fall outside the 45-day time limit as they occurred from four months to one year prior to his June 6 meeting with the EEO Counselor⁴.

As noted above, a federal employee also has the option of bypassing the administrative process and filing an ADEA claim directly with the district court. See 29 U.S.C. §633a(d). Indeed, in his complaint to the district court, Halevan alleges that beginning in March 1991, he applied for over forty vacancy announcements to fill GS-510-13 positions ("other non-selections"). However, 29 U.S.C. §633a(d) provides:

When the individual has not filed a complaint concerning age discrimination with the Commission, no civil action may be commenced by any individual under this section until the individual has given the Commission not less than thirty days' notice of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice occurred.

The record is clear that the instant suit was filed at least four years after these other non-selections occurred, which is well outside of the 180-day window provided for by statute. Thus, the district court properly found that the only claim that was properly before the court was Halevan's non-selection for JOA 94-088-LK.

Halevan contends that the other non-selections are, nonetheless, properly before the court on the basis of their relationship to the one timely claim (his non-selection for JOA 94-088-LK). Specifically, Halevan cites the continuing violation theory which is an equitable exception to the time limits for filing an administrative complaint. The Sixth Circuit articulated the continuing violation theory in Haithcock v. Frank, stating that "discriminatory incidents which occur beyond the limitations period are actionable where a plaintiff . . ....