0120083198
09-15-2008
Ted T. Miyamae, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Ted T. Miyamae,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120083198
Agency No. 07-63-00068
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 12, 2008 final decision concerning his
equal employment opportunity (EEO) complaint claiming unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq.
On March 20, 2007, complainant filed the instant complaint. Therein,
complainant claimed that the agency discriminated against him on the
bases of race (Asian) and national origin (Japanese) when on December 23,
2006, he was terminated. 1
Following an investigation by the agency, complainant, a former
Field Representative, GS-1 for the U.S. Census Bureau, requested that
the agency issue a final agency decision (FAD). The FAD found that
complainant failed to demonstrate that he was discriminated against.
Specifically, the FAD found that the agency had articulated a legitimate
nondiscriminatory reason for its action, namely, that complainant was
terminated because of poor performance. Moreover, the FAD found that
complainant failed to demonstrate that the agency's reasons were pretext
for discrimination.
On appeal, complainant contends that the investigation of the complaint
was not properly performed because many agency issues were not addressed.
Complainant also contends that the agency has a faulty appraisal system
that needs to be corrected. Finally, complainant contends that he is
willing to waive all of the corrective action that he was seeking because
his wish is to focus on the "larger issue."
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission to affirm the agency's final
decision. The agency indicated that complainant was terminated due
to poor performance. The Commission agrees that complainant failed
to demonstrate that the agency's nondiscriminatory reason was pretext
for discrimination. The record supports this finding in that, of
the eleven periods reviewed, complainant only met or exceeded the
minimum response rate five times. Complainant only met or exceeded
the minimum production rate three times. Complainant met or exceeded
the minimum standard for Wednesday transmittals on three occasions and
never met or exceeded the minimum standard for Friday transmittals.
Further, the record reveals that complainant was counseled regarding
his performance and given extra on-the-job training to improve his
deficiencies. Moreover, in complainant's own testimony, he maintained
that "some kind of discrimination" might have been involved but the
primary causes of his termination involved "inexperience, ignorance,
and very busy supervisors making innocent mistakes with [his] monthly
assignments, and then their careless superior missed their mistakes."
Further, while complainant had many criticisms of the Regional Office's
way of conducting business he failed to show how the agency's actions
were discriminatory in any way. The preponderance of the evidence of
record does not establish that discrimination occurred.
The agency's decision finding no discrimination was proper and is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (S0408)
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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
09-15-08
__________________
Date
1 Complainant also alleged discrimination on the basis of reprisal.
The agency dismissed this basis however, because complainant failed
to show that he engaged in prior protected EEO activity or that he had
opposed any practice made unlawful.
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0120083198
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083198