01A11627
08-27-2002
Charles J. Simeon, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Immigration & Naturalization Service) Agency.
Charles J. Simeon v. Department of Justice
01A11627
August 27, 2002
.
Charles J. Simeon,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Immigration & Naturalization Service)
Agency.
Appeal No. 01A11627
Agency No. I-91-5912
DECISION
Complainant timely initiated an appeal from a final agency decision
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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>
The appeal is accepted for the Commission's de novo review pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as an Immigration Inspector at the agency's Miami International
Airport. Complainant sought EEO counseling and subsequently filed a
formal complaint on April 2, 1991, alleging that he was discriminated
against on the bases of national origin (Hispanic), disability (head
injury resulting in depression), and in reprisal for prior protected
activity when he was terminated from his temporary Veterans Readjustment
Appointment position on March 3, 1990.<2> In addition to filing an
EEO complaint, complainant filed a mixed case appeal which the MSPB
dismissed on October 11, 1990, based on the fact that complainant was a
temporary employee with no MSPB appeal rights. Complainant also filed a
complaint with the Office of Special Counsel (OSC). The OSC terminated
its investigation and gave complainant appeal rights to the MSPB.
On March 8, 1991, the MSPB issued a decision finding that the agency
proved by clear and convincing evidence that complainant's whistle-blowing
was not a contributing factor in the agency's decision to terminate him.
In 1997, the agency acknowledged that �regrettably� no action had been
taken on his EEO complaint. When the parties failed to reach resolution,
the complaint was formally investigated in 1999, and at the conclusion
of the investigation, complainant requested a final agency decision.
In its final decision, the agency found that assuming complainant had
established a prima facie case of discrimination on all of his alleged
bases, the agency articulated a legitimate, non-discriminatory reason
for terminating him, namely that he hit a co-worker and had a very short
temper which he could not control. The agency concluded that complainant
had not established, by a preponderance of the evidence, that the agency's
explanation was a pretext for discrimination. Complainant did not submit
a statement in support of his appeal.
After a careful review of the record, the Commission agrees with the
agency that complainant failed to present sufficient evidence that more
likely than not, the agency's articulated reasons for its actions were
a pretext for discrimination. Although the record indicates that some
of complainant's co-workers believed complainant was treated unfairly,
their testimony corroborated the agency's explanation that complainant
had a very bad temper and was easily moved towards anger. Since the
evidence of record is insufficient to establish that it was complainant's
national origin, disability, or prior protected activity, as opposed
to his conduct, that influenced management's decision to terminate him,
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
August 27, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 Complainant's prior protected activity involved writing to members
of Congress complaining about the way disabled veterans, temporary
employees, and immigrants were being treated by the Immigration &
Naturalization Service. The Merits System Protection Board (MSPB)
ultimately characterized this activity as whistle-blowing, but in its
final decision on complainant's EEO complaint, the agency did not contest
that at least some of complainant's prior activity was protected under
Title VII.