Carol Pollio, Complainant,v.Gale A. Norton, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity CommissionOct 16, 2003
01A24762 (E.E.O.C. Oct. 16, 2003)

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.