01a12356
06-19-2002
David Von Endt, Complainant, v. Lawrence Small, Secretary, Smithsonian Institution, Agency.
David Von Endt v. Smithsonian Institute
01A12356
June 19, 2002
.
David Von Endt,
Complainant,
v.
Lawrence Small,
Secretary,
Smithsonian Institution,
Agency.
Appeal No. 01A12356
Agency No. 98-14-020498; 99-21-060799
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. Under agency number 98-14-020498,
complainant alleged that he was discriminated against on the basis
of his age (DOB: 12/10/1938) when he was not promoted to a GS-1320-14
Research Chemist position. Under agency number 99-21-060799, complainant
alleged that he was retaliated against for filing the earlier complaint
(98-14-020498) when the agency impeded his ability to meet the standards
enumerated in his performance plan and hindered his career advancement
by denying him access to research equipment and delaying the ordering of
new equipment. 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 GS-1320-13 Research Chemist at the agency's Center for
Materials Research and Education facility. Complainant sought EEO
counseling and subsequently filed a formal complaint on February 4,
1998, alleging that he was discriminated as referenced above. At the
conclusion of the investigations, 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 finding that complainant failed to
establish discrimination.
The underlying facts from which the instant complains arise are not
in dispute. On October 15, 1997, complainant was denied promotion
to a GS-1320-14 Research Chemist position. Just prior to that time,
and since that time, two younger employees, who complainant previously
supervised and trained, were promoted to the GS-14 level under different
promotion procedures. When complainant confronted his supervisor about
being denied promotion, he was informed, inter alia, that he needed to
improve the significance of his scientific research. Believing that
the agency equipment did not permit him to conduct the type of research
which could qualify him for promotion, complainant again confronted his
supervisor about being denied access to research equipment and the delays
in ordering needed equipment.
ANALYSIS AND FINDINGS
As this is an appeal from a FAD issued without a hearing, pursuant to
29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). Under the ADEA,
it is unlawful for an employer �to limit . . . in any way which would
deprive . . . any individual of employment opportunities . . . because of
such individual's age[.]� 29 U.S.C. � 623 (a)(2). Under the ADEA it is
also unlawful for an employer to �. . . discriminate against any of its
employees . . . because such individual . . . has . . . participated
in any manner in an investigation, proceeding, or litigation under
[the Act].� 29 U.S.C. � 623 (d).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Loeb
v. Textron, Inc., 600 F. 2d 1003 (1st Cir. 1973). He must establish a
prima facie case by demonstrating that he was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978).
The prima facie inquiry may be dispensed with in this case, however, since
the agency has articulated legitimate and nondiscriminatory reasons for
its conduct. See Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995). Complainant's age must have actually played a role in the
employer's decision-making process and have a determinative influence on
the outcome. Reeves, 530 U.S. at 141. We find that the agency offered
the legitimate nondiscriminatory reasons for the challenged actions.
Turning first to complainant's assertion that he was denied promotion
to the GS-1320-14 Research Chemist position, the agency has offered a
legitimate nondiscriminatory reason for complainant's non-selection.
The agency notes that complainant's publications were relatively
insignificant, involving small studies, which required minimal work. The
agency further contends that complainant's work had little impression on
the scientific area of museum science. Since the agency has articulated
a legitimate nondiscriminatory reason for its non-selection, the burden
now reverts to complainant to establish that the agency's reasons are
either a pretext for discrimination or otherwise unworthy of belief.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120.
To this end, complainant asserts his generalized belief that older,
more experienced employees are entitled to advance ahead of younger,
less experienced employees, without regard to the agency's evaluation
of that employees' contribution to the agency's mission. Complainant's
argument is non-responsive to the agency's explanation that complainant
failed to publish work in peer-respected journals involving large
scientific studies. Accordingly, we conclude that complainant failed
to demonstrate that the reasons advanced by the agency are a pretext
for age discrimination.
Next, we turn to complainant's suggestion that he was retaliated against
when the agency impeded his ability to meet the standards enumerated in
his performance plan and hindered his career advancement by denying him
access to research equipment and delaying the ordering of new equipment.
The agency has articulated legitimate non-retaliatory reasons for its
actions. Namely, the agency suggests complainant never made on requests
for new equipment or, where he had made requests for new equipment,
the resultant delays were attributable to bureaucratic technicalities,
naturally attendant to agency procurement. Regarding complainant's
suggestion that he had little time to use the equipment, it appears
that time constraints resulted from heavy demand by many technicians
to use the same equipment. Complainant does not directly refute the
agency's explanations and we are not convinced, by a preponderance of
the evidence that the lack of complainant's ability to access equipment
immediately, is attributable to a deliberate attempt by the agency to
retaliate against him.
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 (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
June 19, 2002
__________________
Date