05A20936
09-06-2002
Myron L. Ranney, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Myron L. Ranney v. Department of the Treasury
05A20936
September 6, 2002
.
Myron L. Ranney,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Request No. 05A20936
Appeal No. 01A11705
Agency No. TD-99-3205
DENIAL OF REQUEST FOR RECONSIDERATION
Myron L. Ranney (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider the
decision in Myron L. Ranney v. Department of the Treasury, EEOC Appeal
No. 01A11705 (June 13, 2002). Complainant alleged 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.,
on the bases of age (48) and reprisal (prior EEO activity), when:
(1) on October 29, 1998 he was issued an inaccurate evaluation of his
performance for the period October 1, 1997 through June 20, 1998; and
(2) management failed to properly classify his Group Manager position
at the GS-14 grade level.
EEOC Regulations provide that the Commission may, in its discretion,
reconsider any previous Commission decision where the requesting party
demonstrates 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. See 29 C.F.R. � 1614.405(b).
In his request for reconsideration, complainant generally restates
arguments previously raised on appeal. In addition, complainant asserts
that our previous decision improperly gave the impression that there
had been a single promotion of several group members that occurred long
after complainant left the group which served as the justification
for the Assistant Chief's decision to temporarily promote the Acting
Group Manager. Complainant asserts that the same temporary promotions
had been renewed again, and again, over an extended period of time while
he was still managing the group. Complainant further asserts that the
agency's explanation that such promotions were only temporary, is an
insufficient basis for failing to raise his grade to the GS-14 level.
The record shows that complainant's second-line supervisor (S2), at
the relevant time, was advised by the Personnel Office that temporary
promotions for bargaining unit employees did not impact the grade level
of managers. However, he sent the information regarding this issue to
position management to make a determination on the grade level of the
manager of the newly configured group. S2 was subsequently advised
that if the staffing was permanently changed in the group to increase
the number of grade 12 and 13 agents then the manager position could be
considered a grade 14 position. The record shows that in response to
this advice, S2 changed the agents from temporary to permanent in order
to properly compensate all involved. The record further shows that when
S2 got the advice from position management, complainant was no longer
manager of the group. However, S2 still attempted to retroactively
promote complainant but was advised that under personnel guidance such
retroactive promotion was not possible. Complainant has failed to prove,
by a preponderance of the evidence, that S2's explanations were pretextual
or based upon discriminatory or retaliatory animus.
Complainant also argues that the previous decision erred in finding
no evidence of any prior EEO activity since the agency processed the
investigation as if such issue was not disputed. While our previous
decision did not find any prior EEO activity supported by the record,
assuming arguendo that such evidence existed, we agree with the FAD
which determined that a five-year span between the prior EEO activity and
adverse actions, without more, fails to support a finding of reprisal.
Upon review of the record as a whole, we find insufficient evidence of
discriminatory or retaliatory animus sufficient to prove discrimination
or reprisal with respect both claims.
Accordingly, after a review of complainant's request for reconsideration,
including statements and arguments not specifically addressed herein,
the previous decision, and the entire record, the Commission finds that
the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A11705 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
September 6, 2002
__________________
Date