01A05355
05-15-2001
William Simmons, Complainant, v. Michael I. Heyman, Secretary, Smithsonian Institution Agency.
William Simmons v. Smithsonian Institution
01A05355
May 15, 2001
.
William Simmons,
Complainant,
v.
Michael I. Heyman,
Secretary,
Smithsonian Institution
Agency.
Appeal No. 01A05355
Agency No. 98-06-121297
DECISION
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. Complainant alleged that he was discriminated
against on the basis of reprisal (prior EEO activity) when he was not
selected for the position of Acting Sergeant (Custom House).<1>
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Museum Protection Officer, GS-05, at the Office of Protection
Services, National Museum of the American Indian, in New York, New York.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on December 12,
1997. 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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant established a prima
facie case of reprisal because complainant engaged in prior EEO activity,
the selecting officials were aware of complainant's previous activity,
and complainant was not selected for the position. The agency then
found that the selecting officials, the Assistant Manager (ASM) and the
Chief of Security, articulated a legitimate nondiscriminatory reason
for their selection.
The ASM stated that there was a shortage of sergeants at the agency,
and he decided to appoint on an acting basis. The ASM solicited
recommendations from supervisors regarding candidates. Several candidates
were recommended. Among them were complainant and the selectee. The ASM
recommended the selectee to the Chief of Security. The ASM did not
recommend complainant for selection because he observed complainant's
involvement in dereliction of duty, and because complainant did not
accept his advice on how to improve his performance. Specifically,
the ASM stated that the majority of times he observed complainant, the
complainant was off his post; the complainant was often on the telephone
when he was supposed to be observing the cameras; and the complainant did
not have the discipline to not do the things he was not supposed to do.
The Chief of Security attested that he did not select complainant because,
during complainant's previous service as Sergeant, complainant �created
strained and confrontational relationships with management personnel
and staff.� The Chief of Security stated that complainant refused to
participate in an investigation into a manager's conduct. Also, the Chief
of Security, stated that complainant exhibited a good deal of negative
behavior and was not a team player. Also, the Chief of Security stated
that selectee had exhibited a good level of reasoning, had seniority,
and had exhibited no negative behavior
On appeal, complainant contends that he received a � Highly Successful�
performance appraisal. Also, complainant contends that he never received
any formal, and/or written disciplinary action. Complainant contends
that he never refused to participate in any official investigation of
anyone. He asserts that this claim �is a gross, monstrous, and utter lie.�
ANALYSIS AND FINDINGS
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, 411 U.S. 792, 1973). Specifically, in a reprisal claim,
and in accordance with the burdens set forth in McDonnell Douglas,
and 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 engaged in a protected activity;
(2) the agency was aware of his protected activity; (3) subsequently,
he was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse action.
The record shows that complainant engaged in protected activity when
he filed a prior EEO complaint. Also, the record indicates that
the selecting officials were aware of that activity. Accordingly,
we agree with the agency that complainant established a prima facie
case of retaliation. See Carney v. Federal Insurance Deposit Insurance
Corporation, EEOC Appeal No. 01986113 (August 3, 2000).
Because the agency articulated a legitimate non-discriminatory reason for
the selection of selectee, complainant must demonstrate that this reason
is pre textual and/or that the agency was motivated by discriminatory
animus in selecting selectee. In a non-selection case, pretext may be
demonstrated in a number of ways, including a showing that complainant's
qualifications are observably superior to those of the selectee. Bauer
v. Bailor, 647 F. 2d 1037, 1048 (10th Cir. 1981).
We find, however, that complainant failed to show that the agency's
articulated reasons for its actions were a pretext for reprisal.
The selecting officials gave a justification for why they chose the
selectee, specifically because of his good level of reasoning, his
seniority, and his lack of negative behavior. On appeal, complainant did
not address or dispute that justification. Accordingly, the Commission
finds that the evidence supports the agency's decision.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
May 15,2001
Date
1The record does not reveal any grade level.