01A11440
06-07-2002
Joseph Francer, Complainant, v. Lawrence Small Secretary Smithsonian Institution Agency.
Joseph Francer v. Smithsonian Institution
01A11440
6/7/02
.
Joseph Francer,
Complainant,
v.
Lawrence Small
Secretary
Smithsonian Institution
Agency.
Appeal No. 01A11440
Agency No. 00-22-061000
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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted 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 a Security Guard GS-0085-05 at the agency's National Museum of Natural
History, Office of Protection Service. Complainant sought EEO counseling
and subsequently filed a formal complaint on June 10, 2000, alleging
that he was discriminated against on the bases of race (Caucasian), sex
(male), color (white), and disability (sore throat) when, on April 9,
2000, the agency did not change his duty station. In his statement
to the EEO Investigator, complainant alleged that on April 9, 2000,
he experienced difficulties speaking. Despite this fact, complainant
stated that his Seargent refused to assign him to another duty station.
According to complainant, other employees with temporary difficulties and
pregnancy are regularly reassigned. Complainant's Seargent (Supervisor
#1) (female, black, no disability) averred that complainant's request
for reassignment did not meet the criteria for a temporary change of duty
station. Specifically, Supervisor #1 stated that she grants requests to
change duty station when: (1) the requesting officer has already worked
out agreements with other officers with he or she wants to switch; and
(2) when the officer has been assigned the same duty station two days
in a row. In the instant case, Supervisor #1 noted that complainant
did not meet neither of these criteria.
Complainant also spoke to his Lieutenant (Supervisor #2) (black, male,
no disability), and requested a change of duty station on April 9, 2000.
According to Supervisor #2, complainant asked him to change duty station
to the elevator because he was assigned the same duty station the previous
day and because he had a sore throat and did not want to talk to anyone.
Supervisor #2 averred that he reminded complainant that he was absent
the day before and that he would still have to use his voice if he
was stationed in the elevator. In summary, Supervisor #2 stated that
he denied complainant's request for a change in duty station because
complainant did not give him a good reason for the change and he did
not want to undermine Supervisor #1's authority.
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. Complainant
requested that the agency issue a FAD.
In its FAD, the agency concluded that complainant was not a disabled
employee because his sore throat was no more than a temporary impairment.
Further, the agency held that complainant failed to show that he was
treated differently from similarly situated co-workers, and for that
reason it held that he failed to establish a prima facie case of race,
color or sex discrimination. In the alternative the agency indicated
that even if it could be presumed that complainant established a prima
facie case of discrimination, he failed to show that the reasons it
articulated for its action were pretext for discrimination. Moreover,
the agency concluded that complainant's complaint should be dismissed
because he failed to show that he was harmed or otherwise aggrieved when
he was not reassigned to the elevator.
Neither complainant nor the agency raised any new contentions or arguments
on appeal.
ANALYSIS AND FINDINGS
As a preliminary matter, we note that it appears that complainant is
not an aggrieved employee. In this regard, we take note of evidence
in support of the agency's finding that its failure to temporarily
reassign complainant to the elevator on April 9, 2000, did not �result
in the performance of duties different from those which complainant
normally performed, nor did it result in any change to his authority,
responsibility, prestige, grade or pay.� See Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994) (The Commission has
long defined an aggrieved employee as one who suffers a harm or loss with
respect to a term, condition, or privilege of employment for which there
is a remedy.) Nonetheless, since the agency proceeded to analyze the
case as if complainant had established a cognizable claim of disparate
treatment, we will consider the appropriateness of the agency's action
under that theory of discrimination, rather than dismiss this appeal on
procedural grounds.
In analyzing a disparate treatment claim under Title VII, and the
Rehabilitation Act, where the agency denies that its decisions were
motivated by complainant's disability and there is no direct evidence of
discrimination, we apply the burden-shifting method of proof set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman
v. Queens Village Committee for Mental Health for Jamaica Community
Adolescent Program, Inc., 198 F.3d 68 (2nd Cir. 1999); Swanks v. WMATA,
179 F.3d 929, 933-34 (D.C. Cir. 1999). Under this analysis, in order
to establish a prima facie case, complainant must demonstrate that:
(1) he is an individual with a disability; (2) he is qualified for the
position held or desired; (3) he was subjected to an adverse employment
action; and (4) the circumstances surrounding the adverse action give
rise to an inference of discrimination. Lawson v. CSX Transp., Inc.,
245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to
the agency to articulate a legitimate, non-discriminatory reason for the
adverse employment action. In order to satisfy his burden of proof,
complainant must then demonstrate by a preponderance of the evidence
that the agency's proffered reason is a pretext for discrimination. Id.
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated
a legitimate, non-discriminatory reason for its actions. Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
were a pretext for discrimination. Id.; see also United States Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).
In explaining her decision to deny complainant's request for a
reassignment of work station on April 9, 2000, Supervisor #1 averred
that complainant's request for reassignment did not meet the criteria
for a temporary change of duty station. Specifically, Supervisor #1
stated that complainant did not work out an agreement with another
officer with whom to switch, and complainant did not work the same
duty station from which he wanted to be reassigned two days in a row.
When complainant appealed Supervisor #1's denial to Supervisor #2, the
latter denied complainant's request, explaining that he did so because
complainant did not give him a good reason for the request and he did
not want to undermine Supervisor #1's authority.
Based on the above discussion, we find that the agency has articulated
legitimate non-discriminatory reasons for denying complainant's
request for reassignment. Because the agency articulated legitimate
non-discriminatory reasons for the challenged personnel action,
complainant must prove that these reasons are pretextual and/or that the
agency was motivated by discriminatory animus. Upon reviewing the record
as a whole, the Commission finds that complainant failed to prove by a
preponderance of the evidence that the reasons articulated by the agency
for the challenged personnel actions were pretexts for discrimination.
CONCLUSION
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we affirm the FAD.
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
6/7/02
__________________
Date