01A20410
09-22-2003
Victor R. Ziegler, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, (Bureau of Indian Affairs), Agency.
Victor R. Ziegler v. Department of the Interior
01A20410
September 22, 2003
.
Victor R. Ziegler,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
(Bureau of Indian Affairs),
Agency.
Appeal No. 01A20410
Agency Nos. BIA-99-031, BIA-99-046
Hearing Nos. 320-A1-8229X, 320-A1-8357X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaints of unlawful
employment discrimination. The appeal of the agency's final decision on
these consolidated complaints, Agency Nos. BIA-99-031 and BIA-99-046, is
accepted for de novo review pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Supervisory Police Officer, GS-10, at the Bureau of Indian Affairs
(BIA), Crow Creek Agency facility, in Fort Thompson, South Dakota.
On March 8, 1999, complainant sought EEO counseling and on April 21,
1999, he filed a formal complaint, BIA-99-031, alleging that the agency
discriminated against him in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. when:
(1) On or about February 1, 1999, complainant was not selected for
the position of Supervisory Police Officer, Vacancy Announcement
No. AAO-27/99JM.
On or about February 16, 1999, complaint was replaced as the Branch
Chief of Law Enforcement at Fort Thompson, South Dakota.
On or about February 16, 1999, complainant was told by his District
Commander that he should retire.
On or about March 31, 1999, complainant was forced to resign his
position.
Complainant again sought EEO counseling on May 11, 1999, and on June
23, 1999, filed another formal complaint, BIA-99-046, alleging that the
agency discriminated against him on the bases of race (Native American
- Sioux Tribe), religion (Born Again Christian) and reprisal for prior
EEO activity, in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq., when:
On March 31, 1999, complainant was ordered to attend a meeting at the
police department on Good Friday, and threatened with being charged
with insubordination if he did not attend the meeting.
On or about March 31, 1999, complainant was forced to resign under
protest.
As an initial matter, we note that the agency dismissed claim
2 under Agency No. BIA-99-046, regarding complainant's forced
resignation/constructive discharge claim, because it stated the same
claim that was raised in Agency No. BIA-99-031, claim 4. We find
that the agency properly dismissed this claim, pursuant to 29 C.F.R. �
1614.107(a)(1), for stating that same claim that was pending before the
agency. Therefore, claim 2 of Agency No. BIA-99-046, is hereby dismissed.
The Commission does accept the additional bases for discrimination
raised in Agency No. BIA-99-046, and will evaluate whether complainant
was discriminated against on the bases of race, religion, and reprisal,
in addition to the basis of age, when examining the claim of constructive
discharge in Agency No. BIA-99-031.<1> The agency issued a finding of
no discrimination on the remaining claims.
On another procedural matter, the EEOC Administrative Judge, the Merit
Systems Protection Board (MSPB) and the agency, reached different
conclusions as to whether complainant filed a mixed case complaint.
�A mixed case complaint is a complaint of employment discrimination
filed with a Federal agency based on race, color, religion, sex, national
origin, age or handicap related to or stemming from an action that can
be appealed to the Merit Systems Protection Board (MSPB).� 29 C.F.R. �
1614.302(a). On August 30, 2001, the EEOC AJ issued a Memorandum and
Order of Dismissal, concluding that Agency No. BIA-99-046 is a mixed
case complaint because complainant had standing to appeal to the MSPB,
and because in Agency No. BIA-99-046, he claimed involuntary resignation
and/or constructive discharge, and such an action is appealable to the
MSPB.<2> The AJ dismissed both of complainant's complaints, concluding
that because complainant had a mixed case complaint, he had no authority
or jurisdiction to conduct a hearing. See Management Directive 110
(MD-110), Chapter 4, II, A (November 9, 1999). The EEOC AJ directed
the agency to take final action on the matter.
On April 16, 2002, per the EEOC AJ's instructions, the agency issued
a final decision pursuant to 29 C.F.R. � 1614.302(d). The agency
concluded that claims 3 and 4 of Agency No. BIA-99-031 were mixed case
allegations appealable to the MSPB, and that the remaining claim in
Agency No. BIA-99-046 was directly related to the mixed case allegation
of constructive discharge. The agency concluded that claims 1 and 2
of Agency No. BIA-99-031 were not mixed case allegations, and that its
final decision regarding these claims was appealable to the EEOC.
The MSPB issued an initial decision on June 21, 2002, which became final
on July 26, 2002. The MSPB determined that the agency's final decision
was in error because the MSPB did not have jurisdiction over complainant's
complaints. The MSPB emphasized that at the time the agency issued its
final decision instructing complainant to appeal his �mixed� claims to the
MSPB, the MSPB had already issued an initial decision on March 8, 2002,
dismissing complainant's claims of constructive demotion and constructive
discharge for lack of jurisdiction.<3> The MSPB stated that once it was
determined that the MSPB lacked jurisdiction over the matter appealed,
the agency should have continued processing the issues raised in the EEO
complaints as �unmixed� complaints. See 29 C.F.R. � 1614.302(c)(2)(ii).
On July 18, 2002, the agency contacted the Commission and informed us
that it had received the MSPB's June 21, 2002 decision, and noted that
complainant had already filed an appeal of the agency's final decision,
in its entirety, with the Commission. On appeal, following a lengthy
administrative process hindered by jurisdictional questions, complainant
asks the Commission's Office of Federal Operations to issue a decision
on his complaints of discrimination, and, we do so in the interests of
adjudicatory efficiency. Therefore, we will now address the merits of
his complaints.
Replacement and Non-selection: BIA-99-031 Claims 1 and 2
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. 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. Id. at 802; Furnco
Constr. Corp. v. Waters, 438 U.S. 567 (1978); Loeb v. Textron, Inc.,
600 F.2d 1003 (1st Cir. 1979) (applying McDonnell Douglas to ADEA
cases); Hochstadt v. Worcester Foundation for Experimental Biology,
Inc., 425 F. Supp. 318 (D. Mass.), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases). The burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has articulated such a reason, the question
becomes whether the proffered explanation was the true reason for the
agency's action, or merely a pretext for discrimination. St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 511 (1993). The burden of persuasion,
by a preponderance of the evidence, remains at all times on complainant.
Burdine, 450 U.S. at 256.
The record shows that effective February 15, 1999, the BIA restructured
its law enforcement program, which changed positions and created
new positions. One of the new positions created was the position of
Chief of Police.<4> This was a new position created at the Crow Creek
Agency, as well as at other locations. The new positions fell under the
authority of the District Commander. According to the District Commander,
the Supervisory Police Officers, also known as Captains, under the prior
program, could not transfer to the new Chief positions; they had to apply.
Complainant had been a Captain under the prior program. Following the
restructuring and until the position could be filled permanently, it was
the duty of the District Commander to appoint an Acting Chief of Police.
The District Commander appointed an individual, age 43, to the Acting
Chief of Police position, and ultimately selected another individual,
also age 43, to the permanent Chief of Police position.
Complainant asserts that the fact that he had to apply for the
Chief of Police position three times before a selection was made,
indicates that his non-selection was motivated by discrimination.
The first two times that complainant applied, no selection was made.
The selection was made on the third announcement. Complainant was
referred for selection as one of the four qualified individuals, but
was not selected. Complainant resigned from the agency on March 31,
1999, the date that another individual was selected for the position,
and was informed of his non-selection in June 1999.
The agency found that complainant failed to establish a prima facie case
of age discrimination because the selectee was in the protected age group
and was only six years younger than complainant. At age 43, the selectee
was in complainant's protected class. However, the fact that the selectee
was in complainant's protected class is not a relevant consideration in
establishing the prima facie case. The relevant question is whether the
complainant was not selected for the position �because of his age.� See
O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996).
Even assuming, however, that complainant established a prima facie case of
discrimination on the basis of age, we find that the agency met its burden
in articulating legitimate, nondiscriminatory reasons for complainant's
non-selection, and that complainant failed to show that the legitimate,
nondiscriminatory reasons articulated by the agency were pretextual.
The agency determined that the selectee was the best qualified individual
for the position based on his strong work ethic, his prior supervisory
responsibilities and his experience in law enforcement at several agencies
doing police work and criminal investigations.
To support his contention that the agency's actions were motivated
by age discrimination, complainant claims that he heard the District
Commander state during a law enforcement meeting, on or about December
29, 1998, that as the new Commander, he was not going to select anyone
50 years old with 20 years of service to the newly advertised Chief of
Police positions. The District Commander denies making this statement
and responds that he has selected many individuals for positions who are
age 40 or over, including the Acting Chief of Police, age 43, and the
selectee for the position of Chief of Police, also age 43. The record
shows that no one contacted by the EEO counselor or interviewed by the
investigator substantiates that the discriminatory statement was made.
Complainant also failed to provide evidence to support his allegation
that such statement was made, beyond his own testimony.
The record does not support a finding that complainant's qualifications
were �so plainly superior as to require a finding of pretext.� Bauer
v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Complainant has
not established that he was better qualified than the appointee to be
Acting Chief of Police or than the permanent selectee for the position of
Chief of Police. When choosing among highly qualified candidates for a
position, employers generally have broad discretion to set policies and
make personnel decisions, and should not be second-guessed by a reviewing
authority, absent evidence of unlawful motivation. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). In addition to
not showing that the legitimate, nondiscriminatory reasons articulated
by the agency were pretextual, he also did not show that the agency's
actions were motivated by discriminatory animus on the basis of age.
Furthermore, complainant has not shown that his �replacement� was
caused by discriminatory actions or motives, but rather it appears
to be the result of the restructuring that occurred in February 1999.
Additionally, there is no indication beyond complainant's testimony that
the selection process that resulted from the restructuring occurred in
a discriminatory manner, or was motivated by discriminatory intent.
Retirement and Constructive Discharge: BIA-99-031 Claims 3 and 4 and
BIA-99-046
Complainant claims that on or about February 16, 1999, the District
Commander told him that he should retire, and that on or about March 31,
1999, complainant was forced to resign his position.
On March 31, 1999, the Acting Chief of Police<5> and an Internal Affairs
investigator visited complainant at his home. Complainant contends that
they ordered him to attend a meeting at the Police Department on Good
Friday, and threatened him with the charge of insubordination if he did
not attend the meeting.
The District Commander denies ever telling complainant that he should
retire, and subscribes complainant's resignation to the fact that there
was an Internal Affairs investigation into allegations of misconduct
against complainant, which complainant wanted to avoid. Complainant
was ordered to come to the Police Department on a Friday to further
discuss the allegations, which happened to be Good Friday, but both the
Acting Chief of Police and the Internal Affairs Investigator testify
that complainant gave no indication that he did not want to go to the
department on that day for religious reasons.
After complainant was informed of the internal investigation against
him on March 31, 1999, complainant mentioned that he was considering
resigning from his position. The Acting Chief of Police informed
complainant that if he resigned on that day, that he would not be charged
with insubordination for failing to appear at the meeting on Friday.
Complainant claims that later that day at the Police Department, he
heard the Internal Affairs Investigator state, �...I just got into it
with that s.o.b.� Complainant claims that he felt that he was being
harassed, and resigned under protest. Thus, he never attended the
meeting on Good Friday, thereby suffering no adverse action by attending
the meeting against his religious beliefs, or by being punished for not
attending the meeting. The question remains, however, whether the order
to attend the meeting on Good Friday, and the consequent threat that he
would be found insubordinate if he did not attend the meeting, as well
as the alleged statement by the District Commander that complainant
should retire, served to create a working condition that resulted in
complainant's constructive discharge from the agency.
�A discriminatory constructive discharge occurs when the employer,
motivated by discriminatory or retaliatory animus, creates working
conditions that are so difficult, unpleasant, or intolerable that a
reasonable person in the complainant's position would feel compelled
to resign. In other words, the employee is essentially forced to resign
under circumstances where the resignation is tantamount to the employer's
termination or discharge of the employee.� Doe v. Social Security
Administration, EEOC Appeal No. 01A14791 (February 21, 2003) (citing
Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 574 (8th Cir. 1997)).
To establish constructive discharge, a complainant must show that:
(1) a reasonable person in his or her position would have found the
working conditions intolerable; (2) conduct which constituted prohibited
discriminatory treatment created the intolerable working conditions;
and (3) the complainant's involuntary resignation resulted from the
intolerable working conditions. Greer v. United States Postal Service,
EEOC Appeal Nos. 01976756, 01976792 (Dec. 29, 2000) (citing Taylor
v. Department of Defense, EEOC Request No. 05900630 (July 20, 1990)).
We find that there is no evidence, beyond complainant's testimony,
that the District Commander recommend or ordered complainant to retire.
Additionally, the record shows that the Internal Affairs investigation
involved misconduct by complainant, and there is no indication that
the investigation was motivated by discriminatory animus on the bases
of age, race, religion, or reprisal. Most significantly, complainant
completed and signed a letter of resignation dated March 31, 1999,
indicating that his statement of resignation was given voluntarily, and
stating the following reasons for his resignation: (1) he felt that he
was being pressured to leave the BIA due to the reorganization; (2) he
believed that it was time for him to exercise his rights as a Crow Creek
Tribal member and that the current tribal political situation may be a
conflict of interest with his position as a BIA Police Officer; and,
(3) by resigning, when he is eligible, he can still get part of his
federal retirement. Complainant did not mention that he was retiring
because any discriminatory or retaliatory treatment was involved or
because the agency or any agency official created intolerable working
conditions for him. The Commission concludes that the conduct alleged
by complainant does not sufficiently rise to the level of conduct which
created intolerable working conditions, and, complainant has failed to
prove by a preponderance of the evidence that he was subjected to any
unlawful discriminatory conduct on the bases of age, race, religion,
or reprisal. Therefore, we find that the agency properly found that
complainant's resignation was not a constructive discharge.
Accordingly, 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.
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 22, 2003
__________________
Date
1Even if the Commission accepted the
additional basis of national origin as urged by complainant on appeal
of the agency's partial dismissal of claim 2 in Agency No. BIA-99-046,
that would not alter the Commission's decision to dismiss claim 2 pursuant
to 29 C.F.R. � 1614.107(a)(1).
2We dismissed the constructive discharge claim in Agency No. BIA-99-046
pursuant to 29 C.F.R. � 1614.107(a)(1); however, because the same claim
was raised in both BIA-99-031 and BIA-99-046, the AJ's analysis continues
to be relevant.
3On April 12, 2002, complainant filed a petition for review (PFR)
with the Clerk of the Board, and at the time the agency issued its
final decision, the PFR was still pending. There is no indication
that the Board returned complainant's appeals for further processing,
and there is no indication that complainant's claims were reinstated.
The last decision issued by the MSPB on complainant's case was the June
21, 2002 decision. The MSPB has closed complainant's case.
4Agency management determined that the Chief of Police positions at the
agency level should be classified and announced as Supervisory Criminal
Investigator and Supervisory Police Officer so that more applicants
could be considered for the positions.
5The Acting Chief of Police who visited complainant's home on March 31,
1999, was not the Acting Chief appointed by the District Commander on
or about February 16, 1999.