0120113838
08-22-2013
Isaiah Solomon, Complainant, v. Wayne Clough, Secretary, Smithsonian Institution, Agency.
Isaiah Solomon,
Complainant,
v.
Wayne Clough,
Secretary,
Smithsonian Institution,
Agency.
Appeal No. 0120113838
Hearing No. 570-2011-00759X
Agency No. 1104120110
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 27, 2011, final decision concerning his equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the Agency's final agency decision (FAD) which found that Complainant failed to show that he was subjected to discrimination as he alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Police Officer (Grade 8) at the Agency's facility in Washington, D.C. On November 18, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity when he was not selected for promotion to the position of Supervisory Police Officer (Grade 10).
Procedural History
After Complainant filed his formal complaint, the Agency conducted an investigation. Despite numerous attempts Complainant failed to provide responses or to meet with the investigator. He ultimately provided some information after being threatened with the dismissal of his complaint. On June 7, 2011, the Agency completed the investigation and issued a Report of Investigation (ROI). Complainant was provided a copy of the ROI and was informed that he had to request a hearing or a final agency decision and if he failed to select one of them a final decision would be issued. When the Agency failed to hear from Complainant, the FAD was issued finding that Complainant failed to show that he had been subjected to reprisal when he was not selected for the Supervisory Police Officer Grade 10 position. Complainant appealed the Agency's FAD.
Thereafter, on March 26, 2012, the Agency received an order from an Administrative Judge (AJ) directing it to produce the complaint file and ROI. The Agency learned for the first time that Complainant had requested a hearing before the Commission. On August 8, 2012, the Agency filed a motion to dismiss as the appeal was already before the Commission. The Agency also argued that Complainant had violated the Commission's regulations by failing to notify the Agency of his request for a hearing.
On September 28, 2012, the AJ issued two orders. The AJ dismissed Complainant's hearing request "as a sanction for [Complainant's] failure to abide by the AJ's Order and his refusal to engage in the discovery process." At the same time, the AJ denied the Agency's motion to dismiss for two reasons. The AJ found that the Agency's notice did not adequately inform Complainant that he risked forfeiture of his right to request a hearing if he did not send a copy to the Agency, and because Complainant's hearing request predated his appeal. The AJ remanded the matter to the Agency for further processing.
Merits
The FAD issued on July 27, 2011, found that Complainant failed to demonstrate that he was subjected to discrimination. There were two announcements regarding this position. Complainant was not selected from the first announcement (MPA) because he did not meet the one-year time-in grade requirement and while he met the minimal qualifications for the second announcement (DEU), he was not interviewed or selected for the position because the selecting official (SO) chose to make selections only from the MPA certification list. The record also shows that the selecting official was not aware of Complainant's prior EEO activity and it was noted that Complainant's prior EEO activity had occurred a year earlier than the selection. The Agency argued that Complainant's belief that he did not get the position because of his prior protected activity was based on nothing more than his own speculation.
The Agency further found that even assuming arguendo that Complainant established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that Complainant was not interviewed or selected for the position because the SO chose to interview from only the MPA certificate, which did not have Complainant's name on it. According to the Agency, the SO felt that the certificate was sufficient, which was a decision within his discretion. Management maintained that Complainant was not singled out because no one from the DEU certificate was selected to be interviewed. The Agency found that Complainant offered no evidence that the decision was a pretext for discriminatory conduct.
CONTENTIONS ON APPEAL
On appeal, Complainant did not submit a statement regarding this matter. The Agency requests that the appeal be dismissed as premature because the Complainant had requested a hearing before an Administrative Judge prior to filing the appeal. With regard to the merits of the case, the Agency requests that the FAD's finding of no discrimination be affirmed as the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to provide any evidence to show that the reasons were pretext for discrimination.
ANALYSIS AND FINDINGS
As the AJ sent this matter back to the Agency for processing, and the Agency never rescinded its July 27, 2011 FAD, the Commission deems this matter ripe for our determination of the merits. Therefore, we deny the Agency's request that we dismiss the appeal as premature. We also find no evidence that the AJ abused her discretion in dismissing Complainant's hearing request as a sanction.
After a review of the record in its entirety, we affirm the FAD. We find that even if we assume arguendo that Complainant established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was not selected for the position because he was not on the list that the SO used to make the selection. Complainant was not on the list because he did not meet the one-year experience requirement and therefore was not on the certificate of eligibles. We find that Complainant has provided no evidence that discriminatory animus was involved in this case or that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination. Accordingly, we find the preponderance of the evidence of record does not establish that discrimination occurred. Therefore, the Agency's FAD finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
__8/22/13________________
Date
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0120113838
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113838