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Claim of Age Discrimination Reinstated

Wednesday, October 09, 2013

In Musselman v. Dept. of Agriculture, EEOC Appeal No. 0120131528 (July 31, 2013), the Equal Employment Opportunity Commission Office of Federal Operations (OFO) reversed the agency’s dismissal of a complainant’s EEO claim and remanded for further proceedings.

Musselman worked as a plant physiologist at the Department of Agriculture’s Rocky Mountain Research Station facility in Fort Collins, Colo. On November 17, 2012, he filed a formal EEO complaint alleging that the agency had discriminated against him on the basis of age (70) when he was informed that his position was unfunded and would be abolished. The agency dismissed the complaint under 29 C.F.R. § 1614.107(a)(5) because he remained employed with the agency and, thus, was alleging that a proposal to take a personnel action was discriminatory. Alternatively, the agency dismissed the complaint under 29 C.F.R. § 1614.107(a)(1) because he had failed to allege any harm as a result of the agency’s conduct.

On appeal, the OFO reasoned that if a proposal to take a personnel action is part of a pattern of harassment, then it should not be dismissed under 29 C.F.R. § 1614.107(a)(5) since the proposal has already affected the employee. The OFO then noted that Musselman had alleged that the agency’s decision not to further fund his position had adversely affected him as part of a pattern of ongoing harassment because of his age and that his reputation as a researcher had been damaged because others who follow his research were aware that the project under his leadership had lost funding. Additionally, the OFO noted that Musselman had alleged that agency officials had harassed him about the need for younger researchers, questioned him about his plans to retire and advised him that his research was no longer valuable. Thus, the OFO concluded that Musselman had stated a claim and that the agency’s dismissal of his complaint was improper.