01A24762
10-16-2003
Carol Pollio, Complainant, v. Gale A. Norton, Secretary, Department of the Interior (National Park Service), Agency.
Carol Pollio v. Department of Interior
01A24762
October 16, 2003
.
Carol Pollio,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 01A24762
Agency No. FNP-2001-001
Hearing No. 100-A2-7190X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning her 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. 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 during the relevant time, complainant was employed
as a Supervisory Resource Management Specialist GS-11 at the agency's
Prince William National Forest Park (PWNFP), Triangle, Virginia facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on October 2, 2000, alleging that she was discriminated against,
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 Equal Pay Act of 1963 (EPA),
as amended, 29 U.S.C. � 206(d) et seq., on the basis of sex (female) when:
(1) from July 1995 to present she has performed the duties of
Division Chief at the GS-11 level, while male Division Chiefs have been
compensated at the GS-12 level;
she was not selected for the position of Supervisory Park Ranger,
GS-0025-11, under vacancy announcement NPS-PRWI-00-06; and
she was subjected to a hostile work environment when (a) she was
required to attend meetings on a weekly basis, while other Division
Chiefs were only required to attend bi-weekly meetings; (b) she was
not allowed to make any decisions within her Division; (c) her requests
for overtime and compensatory time were denied; (d) she was required to
attend all staff meetings personally while others were allowed to send
representatives; (e) she was required to submit written justifications;
(f) she was threatened with failure of her performance plan; (g) she
was disciplined with counseling sessions; and (h) the Superintendent
(RMO) was openly hostile to her.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
finding no discrimination.
On appeal, complainant essentially asserts that the AJ erred in granting
summary judgment because she raised a genuine dispute of material fact
with respect to the following<1>: (1) that her responsibilities were
substantially similar to the two male GS-12 Division Chiefs; (2) that
one of the members of the first vacancy announcement's (VA1) selecting
panel (S02) (now deceased), had recommended complainant for selection
prior to VA1's cancellation. In addition, complainant asserts that
another VA1 selecting official (S02) told her that her application was
far better than the other applicants. In addition, complainant asserts
that contrary to the agency's justification for hiring the selectee (S1),
complainant did in fact possess significant law enforcement experience;
and (3) that witness statements support the assertion that RMO was hostile
toward complainant and that such hostility was on account of her gender.
With respect to complainant's first allegation, we find that the
undisputed record shows that the GS-12 Division Chiefs supervised and
managed subordinate supervisors and their staff, while complainant did
not have this responsibility. One GS-12 Division Chief supervised 18
employees, and the other GS-12 Division Chief supervised two subordinate
GS-11 supervisors and nine of their subordinates. While complainant
asserts that she was performing duties that were similar in complexity as
the other two GS-12 Division Chief, she does not dispute the fact that
she did not supervise any supervisors. In addition, while complainant
argues that one of the GS-12 Division Chiefs only supervised two permanent
employees (as the other employees were seasonal or part-time employees),
she does not dispute the fact that she supervised fewer employees than
each of the GS-12 Division Chiefs. These factors alone create a critical
distinction which serve to defeat complainant's first claim under the
EPA. See Johnson v. Department of the Army, EEOC Appeal No. 01934836
(October 28, 1994), request for recon. denied, Johnson v. Department of
the Army, EEOC Request No. 05950185 (May 23, 1996) (holding that work
assignments differed markedly with respect the level of responsibility
entailed when a GS-12 comparative supervised six GS-11 employees, a
GS-13 comparative supervised one GS-12 and three GS-11 employees and,
by contrast, complainant, a GS-12 only supervised two GS-11 employees).
With respect to complainant's second allegation, we find that it is
undisputed that the Assistant Superintendent (S03) (female) decided to
cancel the first vacancy announcement. In addition, there is no evidence
in the record to support the conclusion that S03's decision to cancel
the first vacancy announcement was motivated by complainant's gender
or in any way influenced by RMO. With respect to the second vacancy
announcement (VA2), we find that complainant has failed to present any
evidence on the issue of pretext or discriminatory intent. Specifically,
we note that VA2's selection panel testified that they chose S1 primarily
because he had 13 years of service in the National Park Service, over
five years of full-time law enforcement experience and management of a
law enforcement function at the district level, and over ten years of
experience as an official supervisor. VA2's selecting panel further
testified that complainant did not demonstrate relative, recent or
extensive experience in law enforcement, search and rescue, emergency
medical service, and fire operations and skills. While complainant
asserts that she had the law enforcement experience that S1 had, she
does not dispute the fact that her law enforcement duties were of a
collateral or part-time nature and there is no evidence in the record
that complainant's qualifications were plainly superior to those of S1.
More importantly, we find that complainant's non-selection claim fails
because she did not provide any evidence to support the conclusion
that any individual on the second selecting panel was motivated by
discriminatory animus when they recommended S1 for selection to the
position of Supervisory Park Ranger, GS-0025-11. In addition, we
note that complainant has not put forward any evidence to show that
RMO influenced the second selecting panel in any manner. Accordingly,
we find that complainant failed to raise a genuine dispute of material
fact on this issue.
With respect to the last claim, we find that RMO gave explanations for
each of his employment actions alleged by complainant. Complainant
has failed to present evidence, other than her bare assertions, that
contradicts RMO's explanations for his actions. In addition, we find no
evidence in the record that RMO treated similarly situated male comparison
employees more favorably than complainant. While the record contains
statements from co-workers who believe that RMO treated complainant with
hostility, there is no basis in the record to support the finding that
any hostilities toward complainant were due to complainant's gender.<2>
Accordingly, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the final
agency order because the Administrative Judge's ultimate finding, that
unlawful employment discrimination was not proven by a preponderance of
the evidence, is supported by the record.
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
October 16, 2003
__________________
Date
1 Complainant has raised other arguments in her appeal. However, we
address only those arguments that merit discussion.
2 We note that while two witness believed that gender was a factor,
such opinions were not supported by any description of events or any
incidents of disparate treatment. Accordingly, such evidence is not
sufficient to raise a genuine issue of material fact.