01983099
08-07-2000
Doc Adams, Complainant, v. Agency.
Doc Adams v. Smithsonian Institution
01983099
August 7, 2000
.
Doc Adams,
Complainant,
v.
Agency.
Appeal No. 01983099
Agency Nos. 97-13-112696;
97-29-041197; 97-41-061697
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaints of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; and the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. � 621 et seq.<1> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405). Complainant alleged that he was discriminated
against on the bases of race (African-American), religion (Seventh Day
Adventist), sex (male), age (42), and in reprisal for prior EEO activity,
when: (1) the Security Manager of another agency museum telephoned the
complainant's Security Manager to complain of complainant's presence in
the other facility; (2) he was not selected for the position of Training
Instructor, GS-1712-7/9; (3) he was issued a Letter of Counseling
regarding an incident with a visitor; (4) his supervisor denied him the
opportunity for a thirty-day temporary training assignment; and (5) his
supervisor denied him the opportunity to temporarily act as Sergeant or
receive training to operate the control room.
The record reveals that during the relevant time, complainant was
employed as a Security Guard, GS-05, at the agency's Hirshhorn Museum and
Sculpture Garden facility. Believing the agency had committed unlawful
discrimination, complainant sought EEO counseling and subsequently filed
formal complaints on November 26, 1996, November 27, 1996, February
12, 1997, April 11, 1997, and June 11, 1997. The complaints were
consolidated for investigation. 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 final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie of case of discrimination for any of the issues raised in his
complaints. Nevertheless, the FAD concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions and that complainant
did not establish that more likely than not, the agency's articulated
reasons were a pretext to mask unlawful discrimination or retaliation.
On appeal, complainant requests a hearing for the twelve complaints
he filed against the agency between May 22, 1996 and June 16, 1997.
Complainant also contends that the agency did not process his complaints
in a timely fashion and failed to adequate investigate the complaints.
The agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979),
the Commission agrees with the agency that complainant failed to establish
a prima facie case of race, sex, religion, age or reprisal discrimination.
The record does not reveal that complainant was singled out for treatment
different from that accorded persons otherwise similarly situated who
are not members of his protective classes. Likewise, we find that the
record does not reveal any nexus between his prior EEO activity and
the alleged adverse actions. We further find that complainant failed
to present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination. In reaching
this conclusion, we note that, other than his bare allegations,
complainant failed to provide any credible evidence demonstrating that
any of the agency's actions were motivated because of his membership in
any of the identified protected groups or his prior EEO participation.
Finally, we note that, at the end 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.
Since complainant elected to receive a final decision by the agency,
he cannot now receive a hearing on the same matters. 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 (M0300)
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
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 7, 2000
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.