01a03338
07-06-2000
William Simmons v. Smithsonian Institution
01A03338
July 6, 2000
William Simmons, )
Complainant, )
)
v. ) Appeal No. 01A03338
) Agency No. 9612010896
I. Michael Heyman, )
Secretary, )
Smithsonian Institution, )
Agency. )
______________________________)
DECISION
In accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
at 29 C.F.R. � 1614.405), the complainant's appeal from the agency's
final decision in the above-entitled matter has been accepted by
the Commission.<1> The issue on appeal is whether complainant was
discriminated against because of his race (Black) and reprisal (prior
EEO activity) when, on August 20, 1995, he was not selected for the
position of Guard Supervisor (the Position), GS-085-8, under Vacancy
Announcement No. 05-2098P.
The record shows that complainant, then a Museum Protection Officer,
Grade 5/5, applied for the Position and was interviewed by an interview
panel, which included an African-American, an Hispanic, and two White
individuals. Complainant was rated satisfactory by the panel but was
uniformly rated lower on his interview performance than most of the
other applicants. On August 1, 1995, two African-American applicants
were selected for the Position. Two of the panelists denied knowledge,
when the selections were made, of complainant's prior EEO activity.
The agency found that complainant failed to establish a prima facie case
of race discrimination in that two Black individuals were chosen for
the Position. The agency also found that complainant failed to establish
a prima facie case of reprisal discrimination because he did not provide
the dates and circumstances of his prior protected activity and because
he failed to show any connection between any early EEO activity and his
failure to be promoted. The agency found that complainant failed to
offer any evidence to support his contention that the selection process
was biased against him.
After carefully reviewing the record, including the stated qualifications
of complainant and the selectees, we find that the agency properly
held that complainant was not discriminated against based on his
race. We agree with the agency that complainant failed to establish a
prima facie case of race or reprisal discrimination. We also find that
complainant failed to adequately rebut the agency's main reason for his
nonselection, that he did not perform as well in his interview as the
selectees performed. Accordingly, after careful review of the record
in its entirety, including consideration of arguments and evidence not
specifically stated herein, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision because
the preponderance of the evidence of record does not establish that
discrimination occurred.
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
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 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:
07-06-00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing 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.