0120102930
09-16-2010
James M. Smith, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
James M. Smith,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120102930
Agency No. 10-63-01169D
DECISION
Upon review, we find that the Agency's decision dated June 14, 2010, dismissing Complainant's complaint for failure to state a claim is proper pursuant to 29 C.F.R. �1614.107(a)(1). The Agency's decision dismissing the complaint is AFFIRMED.
BACKGROUND
In his complaint, Complainant, a former Crew Leader with the Agency's Ocala, Florida Local Census Office, alleged discrimination when on April 21, 2010, he was terminated from his employment because he failed a background investigation. The Agency dismissed the complaint since Complainant failed to state any protected basis covered under EEO statues.
ANALYSIS AND FINDINGS
On appeal, Complainant indicates that he did state a claim "just not one that fits neatly into the Census Bureau's EEO Office descriptions with respect to Title VII, ADEA, Rehabilitation, Equal Pay or Retaliation." Complainant's June 30, 2010 Appeal Brief. Specifically, Complainant indicates that he was discriminated against when he was terminated for being "a person of questionable character" and when the Agency failed to conduct a thorough background investigation. Id. In response, the Agency states that Complainant merely checked a box for retaliation as a basis in his formal complaint with no specificity therein, and its records showed no prior EEO activity on the part of Complainant. Agency's August 5, 2010 Appeal Brief. The Agency also states and Complainant clearly indicates on appeal that the alleged action at issue is "not a retaliation complaint." Id. The Complainant does not dispute the Agency's foregoing statements. After a review of the record, we find Complainant did not allege discrimination on any EEO protected basis encompassed in EEO statutes applicable to federal sector employees. Upon review, we find that Complainant failed to identify any basis within the purview of the regulations. 29 C.F.R. � 1614.101.
Accordingly, the Agency's final decision 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
9/16/10
__________________
Date
2
0120102930
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013