01A15039
04-09-2002
Neil O. Schiche, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Neil O. Schiche v. Department of Interior
01A15039
April 9, 2002
.
Neil O. Schiche,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A15039
Agency No. LLM-00-070
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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 decision.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Forester for the Bureau of Land Management (BLM) at the agency's
Kemmerer Field Office in Kemmerer, Wyoming. Complainant sought EEO
counseling and subsequently filed a formal complaint on August 16, 2000,
alleging that he was discriminated against on the basis of reprisal for
prior EEO activity when he was not selected for the position of Natural
Resource Specialist in the Buffalo, Wyoming, BLM office.
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
requested a final decision by the agency. In its FAD, the agency
concluded that although complainant had established a prima facie case
of discrimination, he failed to establish
that the agency's articulated legitimate, nondiscriminatory reason for
its action was a pretext to hide unlawful discrimination.
The record reveals that the selection official, (SO), selected a resource
advisor (RA) from outside the office to interview three candidates and
submit a selection recommendation to him. SO took this course of action
because of his familiarity with the three applicants and his supervisory
position over complainant. RA stated that he chose the selectee over
complainant because the selectee was more experienced in writing documents
and working with third-party contractors. Specifically, RA determined
that the selectee had greater experience with the National Environmental
Policy Act (NEPA). Further, RA asserted that the selectee came across
very well during the interview and thus he recommended the selectee
to SO. SO indicated that even if complainant had been RA's choice, SO
would have had to consider whether complainant's poor relationship with
the community and agency personnel would have inhibited his ability to
perform the job. The agency concluded that it had articulated legitimate,
nondiscriminatory reasons for its selection.
Complainant contended that agency officials had discriminatory animus
against him based on his prior EEO activity. He stated that he had a
conversation with SO, when SO told him that he (SO) was told to stay
out of the matter and that he could not help the complainant in any way.
The SO denied this statement with regard to the selection at issue here.
According to SO, the statement was made in reference to complainant's
earlier transfer from the Buffalo, Wyoming field office to the office
in Kemmerer. Complainant also stated that SO told a local reporter that
complainant was bringing a lawsuit over his transfer and that SO could
not comment on the matter. Complainant cited this as further evidence of
the discriminatory animus by agency officials. The agency, in its FAD,
concluded that the complainant offered no direct evidence to support
his perception. The agency noted that both SO and RA indicated that
they had knowledge of complainant's prior EEO activity, but that both
denied that it factored into their decision.
On appeal, complainant contends that he has much more knowledge of land
resources and that he has much better standing within the community.
Complainant states that in 1999, he received the Wyoming Wildlife
Federation Outstanding Public Service Award, and in 1998 he was given a
letter of commendation by the Governor of Wyoming's Office of Federal
Policy for his approach toward involving the public in planning and
environmental processes. The agency requests that we affirm its FAD.
ANALYSIS
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited
reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The Commission is not persuaded that the agency discriminated against
complainant as a result of his prior EEO activity. The agency presented
evidence to indicate that the selectee was in fact more qualified for the
particular position. In articulating a legitimate, non-discriminatory
reason for the non-selection, on which the agency relied in its FAD,
RA indicated that the selectee, unlike the other two applicants, had
experience in working with outside contractors and in writing NEPA and
other documents. RA also indicated that the selectee's experience in
writing Environmental Impact Statements and working with third-party
contractors was presented in a well-organized manner. The Commission
finds these reasons satisfactory.
The complainant does not establish by a preponderance of the evidence that
the agency acted on the basis of the prohibited reason. Although it may
be true that the complainant had better working knowledge of the natural
resources, this was not an essential qualification for the position.
Further, although the SO does admit that he was told by higher agency
officials not to help the complaint in any way, this was clearly in
reference to complainant's earlier transfer to the Kemmerer office
from Buffalo. The Commission finds that complainant does not meet his
burden of proof and establish a nexus between the protected activity and
the non-selection. 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 decision finding of no discrimination.
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
April 9, 2002
__________________
Date