01A11705
06-13-2002
Myron L. Ranney, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Myron L. Ranney v. Department of the Treasury
01A11705
June 13, 2002
.
Myron L. Ranney,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A11705
Agency No. TD99-3205
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant alleged discrimination 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 Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq., on the bases of age (48) and reprisal
(prior EEO activity), when: (1) on October 29, 1998 he was issued an
inaccurate evaluation of his performance for the period October 1, 1997
through June 20, 1998; and (2) management failed to properly classify
his Group Manager position at the GS-14 grade level.
Age Claim
The agency determined in its Final Agency Decision (FAD) that complainant
failed to present a prima facie case of age discrimination with respect
to Issue 1, since complainant was unable to show that he was treated
differently than other similarly situated employees outside his protected
group. Specifically, the rating official (S1) responsible for rating
complainant's performance during the relevant period also rated eight
other managers. Of the nine managers, eight (including complainant)
received a �fully successful� rating. Six of those managers were older
than complainant, and one was younger. One manager, who was older than
complainant, received a �distinguished� rating.
With respect to Issue 2, the agency assumed that complainant established
a prima facie case since the record did not show the age of the Acting
Group Manager who received a temporary promotion to the GS-14 level.
However, the agency determined that management articulated a legitimate,
non-discriminatory reason for its employment action that was not
rebutted by complainant. Specifically, the Assistant Chief testified
that the decision to temporarily promote the Acting Group Manager was
made several months after complainant voluntarily left that position.
That decision was based on the promotion of several group members.
The position management staff advised the Assistant Chief that, if the
positions in the group were permanently upgraded, it may be appropriate
to upgrade the Group Manager position as well. The Assistant Chief
further stated that although they were not required to do so, a decision
was made to temporarily upgrade the Group Manager position until the
higher graded staff were reassigned to another manager. The Assistant
Chief also stated that he was told that the personnel guidance did not
allow for a retroactive correction of complainant's pay for the brief
period during which he was supervising the higher-graded employees.
The agency found no evidence of pretext or age animus in the record.
While complainant made general assertions that the Assistant Chief was
biased against him, the agency concluded that the preponderance of the
evidence did not establish age discrimination.
Reprisal Claim
The agency determined that complainant failed to establish that he
engaged in prior EEO activity. The complainant alleged in his affidavit
that he was subjected to reprisal for his 1993 grievance regarding a
performance appraisal. The agency found that complainant's explanation
of the grievance and the records documenting the grievance failed to
show that the grievance involved any allegations of discrimination.
Moreover, the agency concluded that even if complainant was able to show
that he engaged in prior protected EEO activity he has not established
a causal connection between the 1993 grievance and his 1998 performance
appraisal and failure to classify his Group Manager position at the GS-14
grade level. Further, the agency concluded that the five-year time span
between these incidents and the grievance does not support an inference
of retaliatory motive. Accordingly, the agency found that complainant
was unable to prove that the agency engaged in reprisal.
On appeal, complainant argues that since throughout the EEO investigation
the agency acted as if complainant's prior grievance amounted to prior
EEO activity, it is not appropriate to reopen that issue in its FAD.
We disagree with complainant. While the agency investigated complainant's
reprisal claims, complainant always retained the burden of showing
that he engaged in prior EEO activity. Nothing in the investigation
indicates that such issue was undisputed or stipulated to by the agency.
Once the investigation was completed, the record did not establish that
complainant, engaged in prior EEO activity.
Complainant also generally argues that his first and second-line
supervisors were biased against him as evidenced by various discrepancies
and inconsistent conduct. While we disagree with complainant's view of
the record and find that it is not clear that his supervisors failed to
follow proper procedure, even if complainant did establish that certain
discrepancies or mistakes existed, we find such evidence insufficient
in proving age bias.
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 agency's
final decision because the preponderance of the evidence of record does
not establish that discrimination occurred.
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
June 13, 2002
__________________
Date