0120120523
03-14-2012
Angelo Sylvester, Complainant, v. Gary Locke, Secretary, Department of Commerce (Bureau of the Census), Agency.
Angelo Sylvester,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 0120120523
Hearing No. 550-2011-00446X1
Agency No. 10-63-02609D2
DECISION
Complainant filed an appeal from the Agency’s final order dated
October 26, 2011, finding no discrimination with regard to her complaint.
For the following reasons, we AFFIRM the Agency’s final order.
BACKGROUND
The record indicates that on August 10, 2010, Complainant filed
his complaint alleging discrimination based on race (Caucasian),
national origin (Hispanic), and age (over 40) when he was terminated
for his performance deficiencies on May 13, 2010. Upon completion of
the investigation of the complaint, Complainant requested a hearing
before an EEOC Administrative Judge (AJ). On October 20, 2011, the AJ
issued a decision without holding a hearing, finding no discrimination.
The Agency’s final order implemented the AJ’s decision.
ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal
and evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. The evidence of the
non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor.
Id. at 255. An issue of fact is “genuine” if the evidence is such
that a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material”
if it has the potential to affect the outcome of the case.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, assuming
arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated
legitimate, nondiscriminatory reasons for the alleged termination.
The Agency stated that on April 16, 2010, Complainant was hired as an
Enumerator, a temporary position, and assigned to the Peoria, Arizona
Local Census Office. The appointment was to last until June 12, 2010.
Complainant’s supervisors stated that on May 1, 2010, Complainant was
reprimanded by his Crew Leader for his unsatisfactory performance in the
field, including: not planning an appropriate follow-up with respect
to household visits; not relying on census-issued maps as required;
not reading the prepared questions to respondents as directed; and
not completing the requisite Enumerator Questionnaire. The record
indicates that Complainant was fully aware of the foregoing procedures.
At that time, the Crew Leader gave Complainant additional opportunities
to improve his performance and to correct his deficiencies. However,
after Complainant was given those opportunities to improve, another Crew
Leader observed Complainant on two occasions failing to meet minimum
performance standards applicable to his Enumerator position. The Crew
Leaders also learned that Complainant had conducted a census interview
with a 13 year old minor, a practice strictly forbidden by Agency policy.
Complainant does not dispute this. Upon considering the Crew Leaders’
recommendation and considering Complainant’s poor work products
which needed to be corrected constantly by management, Complainant’s
supervisors decided that his services were counter-productive to the
mission and function of the Agency and made a decision to terminate him
for unsatisfactory performance on May 13, 2010.
After a review of the record, we agree with the AJ that Complainant
failed to rebut the Agency’s legitimate, nondiscriminatory reasons
for his termination. We also find that Complainant failed to identify
any similarly situated individuals outside of his protected classes who
were treated differently or more favorably. Based on the foregoing,
we find that Complainant has failed to show that the Agency’s action
was motivated by discrimination as he alleged.
CONCLUSION
Accordingly, the Agency’s final order 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
3/14/12
__________________
Date
1 We note, as Complainant points out on appeal, that the record, including
the Agency’s final decision, contains a typographical error by referring
it as Hearing No. 550-2011-00336X.
2 We note, as Complainant points out on appeal, that the record, including
the Agency’s final decision, contains a typographical error by referring
it as Agency No. 10-63-03233D and/or Agency No. 10-63-06604D.
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0120120523
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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