0120120137
01-27-2012
James B. Sirene, Complainant, v. Gary Locke, Secretary, Department of Commerce (Bureau of the Census), Agency.
James B. Sirene,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 0120120137
Agency No. 10-63-02667D
DECISION
Complainant appeals to the Commission from the Agency’s final decision
dated September 9, 2011, finding no discrimination. 29 C.F.R. §
1614.405(a). For the following reasons, we AFFIRM the Agency’s final
decision.
BACKGROUND
In his complaint, dated July 30, 2010, Complainant, a former Enumerator
with the Brooklyn Local Census Office, alleged discrimination based on
disability (physiological) when he was terminated from his employment
on May 17, 2010. Report of Investigation (ROI), Exhibit (Ex.) 1.
After completion of the investigation of the complaint, Complainant
requested a final Agency decision without a hearing. The Agency, thus,
issued its final Agency decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which Complainant failed
to rebut.
ANALYSIS AND FINDINGS
After a review of the record, we, assuming arguendo that Complainant
had established a prima facie case of discrimination, find that the
Agency has articulated legitimate, nondiscriminatory reasons for the
alleged termination. The Agency stated that Complainant was hired as
an Enumerator, an intermittent, temporary Schedule A, excepted service
appointment with a not to exceed date of June 27, 2010. Complainant’s
supervisor indicated that she recommended Complainant’s termination
at issue as a result of a verbal altercation between Complainant and her
assistant on May 9, 2010. ROI, Ex. 9. Specifically, the supervisor’s
assistant stated that on May 9, 2010, while going over Complainant’s
time sheet, he saw a discrepancy in the information. ROI, Ex. 10.
When he brought it to Complainant’s attention, Complainant “verbally
abused” him by cursing, yelling, and calling him a “fucking vampire
and blood sucker.” Id. Complainant’s does not dispute this.
The assistant stated that he later gave Complainant’s time sheet
to the supervisor and informed her of the incident. The supervisor
indicated that she then contacted Complainant about the incident.
Complainant however did not apologize and showed no remorse for
his actions. ROI, Exs. 9, 13. The supervisor stated that she then
recommended Complainant’s termination for his conduct and attitude,
described above. ROI, Ex. 9. The record indicates that Complainant
was terminated from his employment effective June 27, 2010.
Upon review, we find that Complainant failed to provide any similarly
situated individuals outside of his protected classes who were treated
differently or more favorably. The Commission does not address in
this decision whether Complainant is a qualified individual with
a disability. Furthermore, we note that Complainant has not claimed
that he was denied a reasonable accommodation. Based on the foregoing,
we find that Complainant has failed to show that the Agency’s action
was motivated by discrimination as he alleged.
CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
1/27/12
__________________
Date
2
0120120137
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120120137