01983580
01-06-2000
David H. Stover, Complainant, v. Bruce Babbitt, Secretary, Department of Interior, (National Park Service), Agency.
David H. Stover v. Department of Interior
01983580
January 6, 2000
David H. Stover, )
Complainant, )
) Appeal No. 01983580
v. ) Agency No. FNP97043
)
Bruce Babbitt, )
Secretary, )
Department of Interior, )
(National Park Service), )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the basis of reprisal (prior EEO activity), in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted in accordance with
EEOC Order No. 960.001. For the reasons that follow, we AFFIRM the FAD
as CLARIFIED herein.
The record reveals that during the relevant time complainant was
employed with the agency's National Park Service in Washington, D.C. as
a Lieutenant in command of the Glen Echo Substation. Complainant claims
that the Chief (C) and the Major (M) in command of investigative services,
retaliated against him when, without notice or an opportunity to defend
himself, he was subjected to an unwarranted internal affairs investigation
concerning his handling of a criminal incident involving two of his
subordinate officers. He further claims that C and M subjected him to
this investigation with the purpose of defeating his promotion to the
position of Captain (Position), in favor of the selectee (SE).
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint. At the conclusion
of the investigation, complainant requested that the agency issue a FAD.
The FAD concluded that complainant failed to establish a prima facie case
of reprisal because his prior EEO activity, consisting of complaints
against C in 1992 and 1994, was too remote in time to be associated
with either the internal affairs investigation or the decision to
select another candidate for the Position. The FAD further found that,
even assuming that complainant had established a prima facie case of
reprisal, the agency articulated legitimate non-discriminatory reasons
for its actions. Regarding the investigation, the FAD found that it was
warranted and that complainant was informed. Regarding the non-selection,
the FAD found that complainant was not selected by C because he was not
the best qualified for the Position. The FAD also found that complainant
failed to show that these reasons were pretextual, notwithstanding
evidence showing that M considered him to be disloyal to C.
On appeal, complainant contends that the agency failed to consider a
number of his arguments. The agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), the Commission agrees with the agency that complainant failed to
establish a prima facie case of reprisal regarding either the internal
affairs investigation or the non-promotion. Specifically, we find that
complainant did not present sufficient evidence to show that either
of these agency actions occurred in such a time and manner so as to
establish a causal nexus between his protected activity and these events.
Internal Affairs Investigation
The record shows that the internal affairs investigation was initiated
in September 1993, and the scope was broadened to include formal charges
against complainant in July 1994. We note that complainant's 1992 EEO
complaint was settled in September 1993, and that he also initiated
another complaint in September 1993, which was still pending in July
1994. Thus, we do not agree with the FAD that these events are too
remote in time to be associated, and we CLARIFY the FAD accordingly.
However, we nonetheless find that the evidence otherwise shows that the
investigation of complainant did not occur in such a manner as to raise
an inference of reprisal. See Barnes v. Department of Transportation,
EEOC Appeal No. 01951037 (October 30, 1996).
Our review of the record discloses that two internal affairs investigators
uncovered significant improprieties and errors concerning complainant's
handling of the criminal incident regarding his two officers, and the
primary investigator issued a report which recommended to M that he
consider an investigation of complainant as well. Because the case
was high profile (involving an off duty shooting in a public place)
and because the errors were significant, M, in conjunction with C,
decided to broaden the scope of the investigation to include complainant's
handling of the matter. Although the record establishes that M considered
complainant to be "disloyal" to C, and that C was the subject of both
complainant's EEO complaints, we find that the decision to broaden
the scope of the investigation was based on the independent report and
recommendation of the primary investigator. Moreover, although the record
also supports complainant's contention that he was not fully informed
about this aspect of the investigation, was not given the opportunity
to address the six charges, and that the investigation ran on for more
than three years, we find that the two investigators credibly testified
that they were in no way influenced by C or M during the course of
the investigation, and that neither C nor M were responsible for any
of these flaws in the internal affairs investigation of complainant.
Moreover, both investigators also testified that even with these flaws,
the investigation was properly conducted pursuant to General Order 32.04.
We note that complainant was cleared of all charges. Accordingly, we
conclude that complainant has failed to establish a prima facie case of
reprisal because he did not produce sufficient evidence to demonstrate
a causal connection between the internal affairs investigation and his
prior EEO complaints.
Non-promotion
According to the record, the vacancy announcement for the Position was
issued in August 1995. Because this was two years after complainant's
1992 complaint was settled, we find that it is too remote in time to
establish a causal nexus under Hochstadt, supra. Moreover, the record
discloses that complainant wrote a letter to C in August 1995 notifying
him that he was completely withdrawing his pending 1993 EEO complaint.
Accordingly, we conclude that complainant has failed to produce sufficient
evidence to demonstrate a causal relationship between previously pending
EEO complaint and his non-promotion, and so has not established a prima
facie case of reprisal. See Hochstadt, supra, and Barnes, supra.
Notwithstanding this determination, we also concur with the FAD that
the agency has set forth legitimate non-discriminatory reasons for its
decision, which complainant has not shown to be a pretext for reprisal.
According to C's testimony, SE was selected for the Position because
he was the "best qualified" of the seven eligible candidates, and
because he had performed well in the Position in an "acting" capacity
for the preceding four months, a factor which was heavily weighted in
the decision. Complainant contends that he is far better qualified for
the Position, especially in terms of the number of command positions he
has held and years of experience. He also contends that he was never
given the opportunity to perform as an "acting" captain, arguing that
SE was "pre-selected" for the Position when he was given the "acting"
captain assignment. As previously noted, he also argues that he was
targeted in the above investigation as a means of defeating his promotion
to the Position, based on the retaliatory motives of C and M.
Our review of the record discloses that complainant was one of seven
candidates rated as eligible for the Position. Complainant and another
candidate tied for the third ranking, while SE ranked fifth. C was the
selecting official, and M, along with four Deputy Chiefs, functioned
as recommending officials (RO). The RO's reviewed the applications
and all together met with C to discuss the selection. M and another RO
recommended SE as best qualified, while two RO's recommended complainant
as best qualified, and one RO recommended complainant along with another
candidate as best qualified. C, and each RO, testified that it was C's
usual procedure to listen to all recommendations, but that he alone made
the selection, which may or may not be consistent with the recommendations
from the RO's. We note that the RO who did not recommend complainant
testified that he was unaware of the internal affairs investigation.
After carefully reviewing the record, we find that complainant has not
demonstrated that his qualifications are clearly superior to that of
the SE's. Neither candidate was ranked first in the rating process,
and their applications received very close average scores (66.3 for
complainant, 64.0 for SE).<2> Furthermore, all seven candidates were
determined to be eligible for the Position, and both complainant and
SE had sufficient command experience to be qualified for the Position.
Although complainant had more years of pertinent experience, SE's current
performance as "acting" captain was factored very highly by C.<3> Even
taking into consideration the testimony of one RO who indicated that C and
M had a negative attitude towards complainant based on his long history of
filing all types of complaints, including EEO complaints, we do not find
that his EEO activity was a factor in the non-selection at issue because
testimony from all of the ROs indicates that neither C nor M attempted to
dissuade any one of them from recommending complainant, and that in their
view, it did not appear that reprisal was a factor in his non-selection.
Moreover, the record is clear that C assumed sole responsibility for
the selection, and that he favored SE for the Position, not only over
complainant, but also over other candidates who ranked higher, had more
years of pertinent experience, and, in the case of one other candidate,
was recommended more highly than SE. Furthermore, we note that it is
well established that an employer has greater latitude when selecting its
managers, and that the EEO process is not to be used as a substitute for a
management decision which may appear unfair, but which was not motivated
by discriminatory (retaliatory) animus. See Loving v. Department of
Treasury, EEOC Appeal No. 01984454 (July 2, 1999); Lloyd v. Department of
Justice, EEOC Appeal No. 01952370 (May 6, 1997). Likewise, although the
record does not establish that SE was pre-selected by C for the Position,
we note that it is also well established that pre-selection alone does
not constitute a violation of Title VII. See Jenkins v. Department of
Interior, EEOC Request No. 05940284 (March 3, 1995).
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 FAD as
CLARIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
January 6, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
__________________________
Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at WWW.EEOC.GOV.
2We note that complainant does not challenge the rating process, and we
find that the scores were based on objective criteria derived from the
ratings of three independent ranking officials.
3Although complainant claims that he was not selected for the "acting"
position because of C's animus towards him, and also in order to give
SE an unfair advantage in the selection process for the Position, he
provides no evidence to support this contention. Accordingly, we find
that this is mere speculation, and weigh it as such in our determination.