0120082138
07-21-2009
Esther J. Claytor, Complainant, v. G. Wayne Clough, Secretary, Smithsonian Institution, Agency.
Esther J. Claytor,
Complainant,
v.
G. Wayne Clough,
Secretary,
Smithsonian Institution,
Agency.
Appeal No. 0120082138
Agency No. 07-11-082707
DECISION
Complainant appeals to the Commission from the agency's March 20, 2008
decision finding no discrimination. Complainant alleges discrimination
on the bases of disability (lower back disc syndrome)1 and in reprisal
for prior protected EEO activity when, on July 3, 2007, complainant was
discharged during her probationary period from her position as a Security
Guard, GS-085-5, after reporting an incident of sexual harassment,
which occurred on June 15, 2007.
We find that the agency articulated a legitimate, nondiscriminatory
reason for terminating complainant. The Area Security Manager stated
complainant failed to complete her probationary period because of
misconduct, which included sleeping on the job, during the course of
her duty. Complainant's immediate supervisor reported that three officers
and multiple museum visitors notified him that they observed complainant
sleeping at her assigned post on two separate occasions on July 2, 2007.
A Program Management Analyst in the Office of Human Resources testified
that in 2007 one other employee in complainant's office was discharged
during their probationary period and three non-probationary employees
were disciplined for sleeping on duty.
The Commission finds that complainant failed to rebut the agency's
articulated legitimate, nondiscriminatory reasons for its action.
Therefore, complainant failed to show, by a preponderance of the
evidence that she was discriminated against on the basis of disability
or reprisal.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
July 21, 2009
__________________
Date
1 The Commission does not address in this decision whether complainant
is a qualified individual with a disability
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0120082138
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013