01A32057
04-07-2004
Glenn A. Rivers, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Glenn A. Rivers v. Department of Interior
01A32057
April 7, 2004
.
Glenn A. Rivers,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A32057
Agency No. WGS-00-021
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
and 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 order.
The record reveals that prior to his retirement, the complainant was a
Hydrologist, GS-1315-09 at the agency's U.S. Geological Survey (USGS)
in Fort Worth, Texas facility.<1> The complainant filed a complaint
alleging that the agency had discriminated against him on the bases of
sex (male), age (D.O.B. 12-04-40, and reprisal for prior EEO activity.
Specifically, the complainant alleged that he was subjected to
unreasonable time-dependent duties, unrealistic deadlines, told that
there was no possibility of promotion and denied the training and work
experience that would assist him in his career advancement.
At the conclusion of the investigation, the complainant requested a
hearing before an EEOC Administrative Judge (AJ). The complainant died
prior to the scheduled pre-hearing conference. Subsequently, the AJ
issued a decision returning the matter to the agency for issuance of a
final order with appeal rights to the complainant's estate. The agency
issued an order finding no discrimination and no reprisal.
The agency found that the complainant's duties under his performance
plan remained the same for the period relevant to the complainant. The
agency concluded that the complainant failed to establish a prima facie
case of discrimination or reprisal.
On appeal, the complainant's attorney argues that the agency erred in
finding that the complainant failed to establish a prima facie case of
age discrimination and reprisal and that a clear nexus exists between
his EEO activity and the increased work expectations and diminished
training opportunities. In response, the agency restates the position
it took in its FAD, and requests that we affirm its final order.
In order to establish a prima facie case of sex and age discrimination,
the complainant must show that he was treated less favorably than a
similarly situated younger and/or female employee. When a complainant
alleges that he or she has been disparately treated by the employing
agency as a result of unlawful age discrimination, "liability depends
on whether the protected trait (under the ADEA, age) actually motivated
the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507
U.S. 604, 610 (1993)). He must generally establish a prima facie case
by demonstrating that he was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). In this case,
there were no similarly situated employees since the complainant was the
only non-supervisory Hydrologist in his unit at the job site. The record
shows that he received training opportunities after he filed his EEO
complaint. The record contains insufficient evidence to show that the
complainant was treated differently than other employees. With regard
to the reprisal allegation, the record shows that the complainant
participated in prior EEO activity, his supervisors were aware of the EEO
activity and that he was then placed under a new supervisor who included
rigid time lines and imposed a pass/fail system. The record contains
evidence that the sharing of work among offices and the distribution of
assignments impacted the complainant's terms of employment sufficient
to state a claim.
The prima facie inquiry may be dispensed with in this case, however,
since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995). The record contains evidence that
the gist of the complaint was that the Project Chief duties that lead
to advancement were assigned to the Fort Worth district office and
that the agency based the assignments on the needs of the office and
on management's decisions of the skills to carry out the assignments.
The record shows that the agency removed the complainant from the project
during the time that the Fort Worth office was being restructured and
based on its perception of complainant's inconsistent performance. The
complainant acknowledged that his effectiveness had been diminished.<2>
The Commission finds that the complainant failed to present evidence
that any of the agency's actions were motivated by discriminatory animus
or reprisal.
After a careful review of the record, including consideration of all
statements submitted on appeal, it is the decision of the Commission
to AFFIRM the agency's final decision because unlawful employment
discrimination was not proven by a preponderance of the evidence.
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
April 7, 2004
__________________
Date
1 The record shows that the complainant is deceased. This appeal is
brought on behalf of his estate.
2 We note that the complainant submitted medical documentation that he
had health issues, but this complaint does not allege discrimination on
the basis of disability.