0120103629
01-20-2011
David S. Peace, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, (Bureau of Land Management), Agency.
David S. Peace,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
(Bureau of Land Management),
Agency.
Appeal No. 0120103629
Hearing No. 541-2010-00036X
Agency No. BLM-09-0283
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. For the reasons set forth,
we AFFIRM the Agency's decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant was
employed as a Criminal Investigator (also referred as Special Agent
(GS-12)) at the Agency's Bureau of Land Management (BLM), Office of Law
Enforcement and Security Division, Jackson Field Office, in Jackson,
Mississippi. Report of Investigation (ROI), at 3. Believing that he
was a victim of discrimination, Complainant sought EEO counseling and
subsequently filed a formal complaint.
Complainant alleges that he was subjected to discrimination on the basis
of sex (male) when, on April 17, 2009, he became aware through a Freedom
of Information Act (FOIA) request that he had not received cash awards
commensurate to those awarded to females by his supervisor, Special
Agent in Charge (also known as the Supervisory Criminal Investigator
(SCI)), since 2002.
At the conclusion of the investigation, Complainant received a copy of
the investigative report. Additionally, the Agency informed Complainant
of his right to request a hearing before an EEOC Administrative Judge
(AJ), or alternatively, to receive a final decision from the Agency.
Complainant requested a hearing before an AJ.
On July 20, 2010, an AJ issued a decision without a hearing finding that
there was no genuine issue of material fact in dispute, and concluded that
Complainant had not been discriminated against as alleged. Specifically,
the AJ found the Agency presented legitimate, nondiscriminatory reasons
for its actions, which Complainant failed to rebut.
On August 5, 2010, the Agency, fully implementing the AJ's decision,
issued a decision finding no discrimination. Thereafter, Complainant
filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant stated that the AJ's issuance of a Summary
Judgment decision was improper. Complainant argued that there was
credible evidence showing sex discrimination and monetary differences
between awards given by male and female employees. Moreover, Complainant
claimed that the AJ did not address other issues referenced in the ROI
of preferential treatment.
In response to Complainant's appeal, the Agency argued that Complainant
failed to establish a prima facie case of discrimination based on gender.
Additionally, the Agency stated that they had articulated legitimate
non-discriminatory reasons for its actions. Moreover, the Agency asserted
that Complainant failed to produce any evidence that the Agency's
articulated reasons were pretext for intentional discrimination.
ANALYSIS AND FINDINGS
New Claims Raised for the First Time on Appeal
On appeal, complainant raised new claims that were not previously
raised as part of his complaint. The Commission has held that it is
not appropriate to raise new claims for the first time on appeal. See
Hubbard v. Department of Homeland Security, EEOC Appeal No. 01A40449
(April 22, 2004).
Summary Judgment
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review, we find summary judgment was appropriate as no genuine issues
of material fact exist. We find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. The SCI, Complainant's first
line supervisor and responsible management official, explained that
Special Agent 1, a female employee in the Grand Junction Field Office
in Grand Junction, Colorado (GS-12) has received a monetary award every
year since 2002. The SCI said that everyone on his staff received a
monetary award in 2008 except Complainant. The SCI denied, however,
the allegation of preferential treatment. The SCI claimed that the only
reason Complainant did not receive a monetary award in 2008 was because
he wanted a Quality Step Increase (QSI) or nothing at all. The SCI
asserted that all employees under his supervision (four females and
three males) were rated fairly based on performance and case load only.
The SCI denied Complainant's allegation of discrimination because of sex
(male) and preferential treatment toward the females on his staff. ROI,
at Exhibit F-3.
The SCI stated Complainant was rated as Exceptional in 2007, and
recommended for a QSI. Special Agent 1 received the same rating in 2007,
and was also recommended for a QSI. The SCI said that the other females
under his supervision (Special Agent 2 for the Colorado State Office
(GS-12), an Investigative Technician for the Colorado State Office (GS-8),
and a Staff Ranger for the Colorado State Office (GS-12)) all received
Superior ratings in 2007. The SCI claimed that the males under his
supervision were rated as follows: the Lead Special Agent (GS-13) received
a Superior raring in 2007; and the Criminal Investigator (GS-12) received
a Fully Successful raring in 2007. The SCI disagreed with Complainant's
allegation that his 2008 rating was changed after he complained about it.
The SCI agreed that a change was made in Complainant's 2008 performance
rating, but only after checking his figures and discovering that an error
had been made in the calculation. The SCI contended that the corrected
score required Complainant's rating to be changed from Fully Successful
to Superior The SCI argued that his only reason for not submitting
paperwork for an award, was because Complainant was not interested in
any award except a QSI. ROI, at Exhibit F-3 & G16.
The SCI agreed with Complainant's allegation that the females were given
more performance awards than the males. The SCI stated that the reason was
females were given awards based on their exceptional job performance.
The SCI said that the Lead Special Agent (male) had performed an
exceptional job since joining his staff; and the Criminal Investigator
(male) also had been recognized for his performance. The SCI asserted
that he had an impression from the females that they were looking
to move ahead in the organization as well as the Lead Special Agent.
Comparatively, the SCI claimed that Complainant seemed happy with what
he did, where he was located, and where he was in his career. ROI,
at Exhibit F-3.
The SCI stated that Complainant's primary investigative focus was to
the Bureau's Wild Horse and Burro program for the Jackson, Mississippi,
Field Office, covering the eleven states in the Eastern States Region.
The SCI agreed that Complainant may have entered a larger number of
incidents into the LAWNET than either Special Agent 1 or Special Agent 2.
In comparison, the SCI asserted that the number of incidents entered
into the LAWNET by Complainant, relating to Wild Horses and Burros, were
not complex in nature as were the investigations performed by Special
Agent 1 and Special Agent 2. The SCI articulated that the awards he
gave to both male and females were given based on complexity, quality
and timeliness of performance, not numbers. ROI, at Exhibit F-3.
CONCLUSION
After a careful review of the record and contentions on appeal, the
Commission finds that Complainant failed to rebut the Agency's articulated
legitimate, nondiscriminatory reasons for its actions. Additionally, the
Commission finds that Complainant has failed to show by a preponderance
of the evidence that he was subjected to discrimination.
The Agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 20, 2011
__________________
Date
2
01-2010-3629
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013