01a43807
08-03-2005
George G. Callahan, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, (National Park Service), Agency.
George G. Callahan v. Department of the Interior
01A43807
August 3, 2005
.
George G. Callahan,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
(National Park Service),
Agency.
Appeal No. 01A43807
Agency No. FNP-01-018
Hearing No. 100-2001-07992X
DECISION
JURISDICTION
On May 18, 2004, complainant filed an appeal from the agency's final
order concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Following the agency's final order, complainant filed a timely appeal
which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, complainant requests that the Commission reverse the agency's
acceptance and implementation of an EEOC Administrative Judge's (AJ)
finding of no discrimination in violation of the ADEA. For the following
reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant was a
Park Ranger, GS-0025-5, with the National Park Service, National Capital
Region, Washington, D.C. Complainant began work with the agency as a
volunteer in 1991 and was hired as a seasonal Park Ranger in 1994. After
the 1994 season ended, he returned to work as a volunteer. Thereafter,
he applied for a position as a Park Ranger, GS-4, and was not selected.
He filed an EEO complaint on the basis of age discrimination which
was resolved in June of 1998 and as a result of the EEO settlement,
after 90 days as a GS-4 Park Ranger, he was placed on a GS-5/7/9 career
ladder as a GS-5 in October of 1998. Complainant testified that the
agency was obliged to promote him to the GS-7 level in October of 1999,
because he had been in grade for one year and new standards for career
ladder promotion were not placed in effect until February of 2000 as a
part of an agreement with the union.
Complainant's supervisor stated that complainant was not promoted to
the GS-7 level because he had not met the agency requirements for being
promoted. The record reveals that the agency career ladder standards,
issued September 1991, stated that career ladder promotions are,
�not automatic or mandatory.� The Administrative Officer testified
that during 1999, there were numerous grievances filed regarding
inconsistencies in Park Rangers career ladder promotions and some
supervisors would not promote Park Rangers unless they had performed a
formal talk that was taped and certified as correct by a certifier in
Harper's Ferry, West Virginia. The agency negotiated new standards for
career ladder promotions with the union which began in February 2000.
Under the new standards, to advance from GS-5 to GS-7 required one
year performing relevant duties at the GS-5 level, possessing sound
interpersonal skills and completing an informal presentation (consisting
of eight interpretative logs), a formal presentation and site checklists.
The record reveals that as of May of 2002, complainant had finished his
formal portion of the requirements but complainant conceded that he has
never completed the informal portion of the requirements.
The record reveals that complainant missed extended periods of work
due to illness, and the agency stated that he was erroneously paid
for time he was not at work. Thereafter, the agency amended his time
sheets and notified him that his pay was to be offset to correct the
time sheet errors. Complainant contended that he received two offsets
for the time period December 19, 1999, to January 1, 2000. He testified
that he was at work during that time he had his pay offset. However, the
supervisory logs reveal that complainant was absent during this period.
On August 29, 2000, complainant contacted an EEO counselor and filed
a formal EEO complaint on December 11, 2000, alleging that the agency
discriminated against him on the basis of reprisal for prior EEO activity
(arising under the ADEA)when:
(1) he was not promoted to the GS-7 level; and,
his wages were improperly offset.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant established a prima facie case of
reprisal because his supervisor was aware of his prior EEO activity and
his denial of promotion took place within a year of his gaining knowledge
of the prior EEO activity. Further, the AJ found that a prima facie
case of reprisal could be established with respect to the salary offsets
because they would be a continuation of a pattern of discrimination that
began with the agency's denial of his promotion.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the agency
stated that promotions were not automatic since there were requirements
that Park Rangers needed to meet to be promoted from GS-5 to GS-7 which
complainant did not meet. The AJ found that the agency stated that
complainant was paid for days he was absent and in non-pay status,
and his pay was offset for this reason.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
retaliation. In reaching this conclusion, the AJ found that complainant
had not shown that he had completed the requirements necessary to
be promoted to the GS-07 level either before the February 2000, union
agreement or afterwards. While the AJ found that there was confusion in
the agency in late 1999 as to whether Park Rangers had to be certified
by a certifier in Harpers Ferry, West Virginia, in order to be promoted
on the career ladder, complainant still did not meet the requirements of
the formal talk or information presentation (eight interpretative logs)
at that time. In fact, he found that complainant had admitted he never
completed the informal log requirements.
With respect to the offset of his pay, the AJ found that complainant
argued that the agency did not produce the sign-in sheets for that period.
However, the AJ noted that the agency produced the supervisor's log and
leave requests showing that complainant was absent during the period in
question.
FINAL AGENCY ACTION
The agency's final order accepted the AJ's finding that complainant was
not discriminated against or subjected to a hostile work environment on
the basis of reprisal. The agency's final order implemented the AJ's
decision.
CONTENTIONS ON APPEAL
The complainant contends that the AJ erred in that, at the time he
was eligible for promotion, the agency did not have any performance
requirements for promotion from GS-5 to GS-7 in the Park Ranger position.
Complainant states that he is not pressing his claim as to improper
withholdings from his salary. The agency contends that complainant has
submitted no new facts and that the AJ decision did not misapply relevant
case law. The agency requests that we affirm its final order.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
ANALYSIS AND FINDINGS
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in
a reprisal claim, according with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), complainant may establish a prima facie case
of reprisal by showing that: (1) he engaged in a protected activity;
(2) the agency was aware of his protected activity; (3) subsequently,
he was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 26, 2000).
Assuming, arguendo, that complainant established a prima facie case of
reprisal with respect to his being denied a promotion from GS-5 to GS-7,
we find that the AJ correctly concluded that the agency articulated a
legitimate, nondiscriminatory reason for its denial of complainant's
promotion. The agency stated that career ladder promotions were not
automatic and that complainant failed to meet the requirements for
promotion under the old standards (prior to February 2000) as well as
under the new standards implemented in February 2000.
While the complaint argues that there were no requirements for promotion
prior to February of 2000, the record reveals otherwise. Career ladder
promotions were not automatic or mandatory after the passage of one year
as he contended. Only after obtaining the qualifications for promotion
and the recommendation of their supervisor may a person be promoted up
the career ladder. Further, testimony of record indicates that, prior
to February 2000, the agency required that Park Rangers perform a formal
talk and complete eight interpretative logs prior to being eligible
for promotion from GS-5 to GS-7. While the record showed that there
was some confusion and inconsistencies in promotion by managers over the
implementation of the standards in late 1999, this does not establish that
complainant was retaliated against. Complainant does not dispute that he
never completed all the post-February 2000 requirements for promotion.
The February 2000, agreement added more requirements which complainant
never completed. We find that the AJ correctly found that complainant
did not establish that more likely than not, the agency's articulated
reasons were a pretext to mask unlawful retaliation.
With respect to issue (2), complainant does not raise this issue on
appeal and so we decline to address it.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record,
and that the AJ's decision referenced the appropriate regulations,
policies, and laws. We conclude that complainant failed to present
evidence that any of the agency's actions were in retaliation for
complainant's prior EEO activity. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm the agency's final order.
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
August 3, 2005
__________________
Date