01a55757
03-03-2006
David D. Swogger, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
David D. Swogger v. Department of the Interior
01A55757
March 3, 2006
.
David D. Swogger,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A55757
Agency No. LLM-03-023
DECISION
Complainant initiated an appeal from a final decision dated August 15,
2005, concerning his complaint of unlawful employment discrimination.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant was previously employed as a
Management and Program Analyst, GS-0343-13 for the Bureau of Land
Management, at the agency's Miles City Field Office in Montana.
Complainant sought EEO counseling and subsequently filed a formal
complaint on December 24, 2003, alleging that he was discriminated
against on the bases of sex (male), age (born in 1945), and reprisal<1>
for prior EEO activity when:
(1) On November 3, 2002, complainant was terminated from his position
of Management and Program Analyst, GS-343-13, as a term employee in
the Montana State Office.<2>
In 2002, complainant became aware that he was not selected for
the position of Associate Field Manager, GS-3401-12/13, vacancy
no. BLM/MT-02-119, at the Miles City Field Office (MCFO).
In 2002, complainant became aware that he was not selected for the
position of Associate Field Manager, GS-340-3401-12/13, vacancy
no. BLM/MT-02-119 in the Lewiston Field Office (LFO).
Previously, in Swogger v. Department of the Interior, EEOC Appeal
No. 01A45647 (November 29, 2004), the Commission upheld the agency's
determination that no discrimination occurred with respect to claims (2)
and (3). The Commission remanded claim (1) to the agency for further
processing, finding that complainant's prior appeal to the Merit Systems
Protection Board (MSPB) regarding claim (1), had been dismissed by the
MSPB for lack of jurisdiction. Only the claim of reprisal in claim
(1) is at issue in the instant appeal.
At the conclusion of the investigation of claim (1), the agency
issued the investigative report to complainant on June 3, 2005, and
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 that the agency issue a final decision.
In its decision, the agency concluded that complainant failed to
establish that the agency's articulated non-discriminatory reasons for
not extending his term position past November 2002 were a pretext to
mask discrimination. The agency reasoned that complainant's appointment
was terminated because the position was not of any benefit to the agency,
and agency officials did not like the difficulty involved in supervising
complainant while he was located in Miles City, but mostly doing work
for the Washington, D.C. Office.
On appeal, complainant contends that the agency's non-discriminatory
reasons for terminating his position in November 2002, are unsupported
by the evidence and the statements of agency officials are not credible.
Complainant argues that his position was funded (travel and salary)
by the Washington Office, not the state office, so that the state
budget would not realize a monetary benefit from the curtailment of his
term position. Additionally, complainant states that his assignments
came from Washington, some of which had deadlines extending well past
the termination date, specifically including the rollout of the cost
accounting program to which he had been assigned as a pilot project.
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 Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance 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), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she 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 25, 2000).
We find that complainant has established a prima facie case of reprisal
discrimination because S1, the official signing and delivering the
memorandum of September 5, 2002, which officially notified complainant
that his term position was cancelled, had been identified in complainant's
prior EEO complaints and that she was aware of complainant's prior EEO
activity. We also find, however, that complainant has not shown that
the agency's non-discriminatory reasons for complainant's termination
are a pretext to mask discrimination. Rather, we find that while S1
was responsible for terminating complainant's appointment, numerous
agency officials concurred in the decision, citing additional reasons
(supervision, funding, nature of the work assigned) why they felt the
appointment itself (not necessarily linked to complainant's employment
with the agency) should be discontinued.
In reaching this conclusion, we note that S1explains that budget
considerations compelled the decision to cancel his position.
Significantly, we note that S2, the agency official extending to
complainant the second term appointment offer in 2001, confirmed that
he did not create the position as a permanent one based on budget
considerations that fluctuated from year to year. Accordingly, S2
designed complainant's term appointment to be reconsidered for renewal in
1-year increments. We find that the term appointment was not specifically
contingent on complainant's performance, and accordingly, we do not find
the agency's failure to provide complainant with a performance assessment
indicative of discrimination. We find that complainant has not shown
that more likely than not, S1's decision to cancel complainant's term
appointment was motivated by reprisal.
We AFFIRM the agency's final decision finding 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
March 3, 2006
__________________
Date
1On appeal, complainant states that he is
only appealing the basis of reprisal for claim (1).
2The record reveals that complainant actually elected to retire prior to
November 3, 2002, which retirement complainant states was coerced by the
agency's decision not to continue with his term appointment (hereinafter,
the TERM position) past November 3, 2002.