01984059
09-07-2001
Jerome Shipman, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Jerome Shipman v. Department of Interior
01984059
September 7, 2001
.
Jerome Shipman,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01984059
Agency No. FNP95052
DECISION
Jerome Shipman (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning his 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleged that he was discriminated against on the bases of age
(49 at relevant time), disability (respiratory illness) and reprisal
(formal complaint alleging age and disability-based discrimination)
when he was not promoted and did not receive an upgrade to the position
of Supply Technician, GS-7, since January 1991.
The record reveals that during the relevant time, complainant was employed
first as a Supply Clerk, GS-5 and then as a Supply Technician, GS-6 at
the National Park Service's Washington, D.C. facility. Believing he
was a victim of discrimination, complainant sought EEO counseling
and subsequently filed a formal complaint on March 15, 1994. At the
conclusion of the investigation, complainant was informed of his right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. Complainant initially
requested a hearing, but later withdrew that request and asked that the
agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of age or disability discrimination, but did establish
a prima facie case of retaliation. The agency then concluded that
management officials articulated a legitimate non-discriminatory reason
for their actions. Specifically, complainant's immediate supervisor
(S1) stated that when complainant first indicated his belief that
his position description did not reflect the duties he performed, it
was rewritten to reflect additional duties complainant was performing.
Complainant's position was then upgraded to the GS-6 level, based on an
auditor's recommendation. S1 testified that while complainant performed
a few of the duties previously assigned to a GS-7 Supply Technician,
he only assisted in those duties and was not responsible for them.
Other management officials supported this testimony, as did the individual
who performed the audit on complainant's position.
The agency found that complainant failed to establish that this
explanation was a pretext for a discriminatory or retaliatory animus.
In response to complainant's claim that he was denied a promotion to
a vacant GS-7 position in 1991, the agency noted that this allegation
was part of a separate EEO complaint. The agency concluded that
complainant failed to establish that he was subjected to discrimination
or retaliation.
ANALYSIS AND FINDINGS
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d 292,
310 (5th Cir. 1981); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979);
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases), the Commission agrees
with the agency that complainant failed to establish by a preponderance
of the evidence that he was subjected to discrimination or retaliation.
Even assuming that complainant is a qualified individual with a
disability and established a prima facie case of age and disability
discrimination, as well as retaliation, he failed to prove that the
agency's legitimate non-discriminatory explanation is a pretext for
discrimination or retaliation. In so finding, we note that the record
establishes that when complainant asserted that he was performing duties
beyond his GS-5 classification, management officials met with him and
re-wrote his position description to accurately reflect his job duties.
The auditor testified that he informed S1 and complainant that they should
agree upon a position description and that when they did, he completed
his audit and determined that complainant's position should be upgraded
to the GS-6 level. Complainant came forward with no evidence to indicate
that the labeling of his position as a GS-6 position was based on his age,
disability or prior EEO activity, rather than the duties he performed.
Although complainant asserted that he was denied a promotion to a GS-7
position in 1991 due to discrimination, the Commission previously found
that complainant's non-selection was not motivated by a discriminatory
animus. See Shipman v. Department of Interior, EEOC Appeal No. 01966424
(August 12, 1998).
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
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
September 7, 2001
Date