0120112805
10-07-2011
Wolfgang J. Gunzel, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Patent and Trademark Office), Agency.
Wolfgang J. Gunzel,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Patent and Trademark Office),
Agency.
Appeal No. 0120112805
Hearing No. 570-2010-00277X
Agency No. 095639
DECISION
On May 7, 2011, Complainant filed an appeal from the Agency's March 21, 2011, final decision concerning his equal employment opportunity (EEO) complaint alleging 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, and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an applicant for employment at the Agency's Arlington, Virginia facility. On May 22, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (German) and age (62) when:
1. on September 12, 2008 he learned of the reason why he was not selected for the position of Translator (German), GS-1040-12, under Vacancy Announcement no. SDL- 08-0217-DE; and
2. on January 14, 2009 he learned that he was not recommended as best qualified candidate for consideration for the position of Translator (German), 6S-1040-12, under Vacancy Announcement Nos. SDL-08-0448-DE and SDL-08-0448a-DE.
By letter dated August 26, 2009, Complainant was notified that Issue 1 above, was dismissed due to untimely contact with an EEO Counselor. Issue 2 was accepted for investigation.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing but the AJ denied the hearing request on the grounds that he failed to show cause for not responding to discovery requests. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the agency found Complainant failed to establish an inference of discrimination. Furthermore, the agency found Complainant failed to establish that the agency's reasons for its actions were a pretext for discrimination. Specifically, the agency found Complainant did not rank high enough to be referred to the selecting official. The individual selected for the position had more experience translating patent applications. The agency found no evidence of pretext. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends he was denied a hearing, and claims he is more qualified that the selectee. The agency responds by stating that the AJ acted properly in sanctioning Complainant by remanding the matter for a final decision. The agency asks that we affirm its final decision because Complainant failed to prove discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
After a review of the entire record, we find that the agency's decision finding Complainant failed to prove he was subjected to age or national origin discrimination was correct as the preponderance of the evidence does not reveal discrimination occurred. Rather, the record supports the agency's reasons for its actions, and Complainant failed to present evidence that would establish the agency's reasons for its actions were a pretext for discrimination. Complainant presented insufficient evidence of any discriminatory motive. As for Issue 1, we find the agency properly dismissed the matter because Complainant did not contact an EEO Counselor until February 2, 2009, well after he was required to do so. We further find the AJ did not err in remanding the matter to the agency for a final decision after Complainant failed to respond to requests for information.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the agency's final decision.
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
10/7/11
Date
2
01-2011-2805
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112805