0120113977
01-20-2012
Richard J. Verardi, Complainant, v. Gary Locke, Secretary, Department of Commerce (Bureau of the Census), Agency.
Richard J. Verardi,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 0120113977
Agency No. 10-63-00169D
DECISION
Complainant appeals to the Commission from the Agency’s final decision
dated July 26, 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, filed on November 23, 2009, which was later amended,
Complainant, a former Local Census Office Manager (LCOM) with the
New York Regional Census Center, alleged discrimination based on age
(over 40) and in reprisal for prior EEO activity when on November 18,
2009, an identified Partnership Specialist (PS) called him “miserable
old bastard” in front of his staff and other employees, questioned
his authority as the LCOM in front of his staff and other employees,
refused to follow rules, policies and procedures established by the LCOM
for all LCOM staff, told other staff that she does not have to follow
Complainant’s rules because she does not work for Complainant, and
stated, “who does he think he is with all his rules?” Complainant
also alleged that on June 1, 2010, he was terminated from his employment
at the Agency.
After completion of the investigation of the complaint, Complainant
requested an immediate 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 incidents. Complainant’s supervisor indicated that after
Complainant informed him of the November 18, 2009 incident, he talked
to the PS who purportedly made the improper remarks, but the PS denied
making such remarks. Report of Investigation (ROI), Exhibit (Ex.) 14.
Complainant stated that the PS made the disparaging remarks about him
to his staff and not directly to him, but he was informed of the remarks
from the staff. ROI, Ex. 12. Complainant also indicated that he and the
PS had minimal contact. Id. The supervisor stated that the PS reported
directly to the Regional Census Center and not to the LCO. ROI, Ex. 14.
After a review of the record, we find that Complainant failed to show
that the alleged harassment, even if we assume the remarks were made,
was sufficiently severe or pervasive to affect a term and condition of
his employment.
Turning to the alleged termination, Complainant claimed that on June
1, 2011, he was orally terminated based on his poor performance. ROI,
Ex. 13. However, stated Complainant, “[o]ut of friendship and pride
since I was never fired before in 50 years of employment, I suggested
to [his supervisor] that I would resign. He said fine and accepted it.
I wrote a quick letter of resignation and I gave it to him. In the letter
I stated ‘I resign due to personality conflict with the managers at
the RCC.’ After thinking it over, on June 2, 2010, I decided that I
probably would not be eligible for unemployment by resigning.” Id.;
ROI, Ex. 17. Complainant further stated that he then sent an electronic
message to his supervisor rescinding his letter of resignation, but he
was told he could not do that. Id.
The supervisor denied counseling and terminating Complainant regarding
his performance on June 1, 2011, as Complainant claimed. ROI, Ex. 14.
With regard to Complainant’s constructive discharge claim, we find that
the Agency articulated legitimate, nondiscriminatory reasons, i.e., his
poor performance and his voluntary resignation. Complainant failed to
show by a preponderance of the evidence that he was orally terminated.
The record indicates that on May 21, 2010, the supervisor previously
counseled Complainant concerning his not meeting the office goals, i.e.,
with respect to field operations and clerical staffing. ROI, Ex. 27.
Complainant acknowledged that he was indeed written up in a D-282,
Documentary of Conduct and/or Performance Problems on May 21, 2010,
due to his poor performance. ROI, Ex. 13. Based on the foregoing,
we find that Complainant has failed to show that the Agency’s actions
were 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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0120113977
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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