0120113848
01-20-2012
James E. Weldon, Complainant, v. Gary Locke, Secretary, Department of Commerce (Bureau of the Census), Agency.
James E. Weldon,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 0120113848
Agency No. 10-63-00835D
DECISION
Complainant appeals to the Commission from the Agency’s final decision
dated July 12, 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 April 15, 2010, Complainant, a former Local
Census Office Manager (LCOM) with the Atlanta Regional Census Center
(RCC), alleged discrimination based on race (Caucasian), color (white),
sex (male), age (over 40), and in reprisal for prior EEO activity
when on March 15, 2010, he was terminated. After completion of the
investigation of the complaint, Complainant did not request 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 record indicates that on October 1, 2009,
Complainant was hired as a LCOM which was an excepted appointment
not-to-exceed September 30, 2010. Report of Investigation (ROI), Exhibit
(Ex.) 22 at 1. Complainant’s Area Manager stated that on March 15,
2010, she made the decision to terminate Complainant because during his
probationary appointment period, he was not meeting the recruiting goals
and was not following the Census practices in his area. ROI, Ex. 10.
The Manager also indicated that he sent a number of Regional Technicians
(RTs) to the Atlanta North LCO, i.e., Complainant’s Census area, to
assess the situation and offer assistance. The Manager stated that he
also considered the RTs’ reports on their observation of Complainant’s
performance in her decision to terminate Complainant. Id. The RTs
reports indicated that Complainant was not effectively managing, was not
the right fit for the office, and was rude and impatient. ROI, Ex. 10a.
Complainant acknowledges the fact that his recruiting numbers were low.
ROI, Ex. 8; Complainant’s August 10, 2011 Appeal Brief.
Complainant also claimed that his former manager, who was previously
assigned to the Atlanta North LCO, and not the Manager, described
above, was actually responsible for his termination. Upon review, we
find that Complainant’s claim is speculative without any supporting
evidence. Complainant’s former manager indicated that although she
had difficulties with Complainant concerning his conduct and his poor
performance while she was Complainant’s manager, she did not terminate
him because she wanted to help him. ROI, Ex. 9. We do not find that
the Agency’s termination decision 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
1/20/12
__________________
Date
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0120113848
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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