0120113543
12-01-2011
Enrique Diaz, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Enrique Diaz,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120113543
Agency No. 10-63-01665D
DECISION
Complainant appeals to the Commission from the Agency’s final decision
dated July 11, 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 June 2, 2010, Complainant, a former Enumerator
with the Agency’s Hialeah Local Census Office, alleged discrimination
based on age (over 40) when he was terminated from his employment at the
Agency on May 6, 2010. Report of Investigation (ROI) at Exhibit (Ex.) 1.
After completion of the investigation of the complaint, the Agency, upon
Complainant’s request, 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 began his employment
on April 27, 2010, but was terminated within a month. Complainant’s
first level supervisor stated that although Complainant was required to
be accompanied by a supervisor who could observe and correct his work
when he conducted home visits, he refused to be observed and insisted
on doing things without supervision. ROI at Ex. 10. Complainant does
not dispute this. Complainant’s second level supervisor indicated
that after considering the first level supervisor’s report concerning
Complainant’s insubordination and not following her directions, he
reviewed Complainant’s work and found that Complainant clearly was
not following directions and was a problem in the office, i.e., having
more than three visits on most of his homes, having multiple visits
on the same day, and filing out his forms incorrectly. ROI at Ex. 9.
Based on the foregoing, the second level supervisor indicated that he
terminated Complainant due to his conduct and performance problems,
as described above. After a review of the record, we find that
Complainant has failed to show that the Agency’s action was motivated
by discrimination as 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
12/1/11
__________________
Date
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0120113543
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113543