01-2006-3464_Provencio
11-11-2007
Antonio J. Provencio, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Antonio J. Provencio,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200634641
Agency No. 056600100852
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 12, 2006 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 Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. Complainant alleged that the agency discriminated against him
on the bases of national origin (Hispanic) and disability (shoulder/back
injury)2 when: (1) on March 3, 2005, he submitted a timely request to
be considered for selection for a six-month detail to the Expeditionary
Warfare C41SR Science and Technology Office in Washington, DC, but was
not selected; and (2) on March 23, 2005, while he was still within the
probationary period of his excepted service appointment with the agency,
he was terminated from Federal employment for failure to adhere to the
agency's procedures for requesting and scheduling leave.
Issue 1
Complainant's third level supervisor (S3) explained that the Expeditionary
Warfare C41SR Science and Technology Officer, ONR, asked him to recommend
an employee for the detail to that office. Complainant's second-line
supervisor (S2) received the applications and forwarded them to S3 for
evaluation. S3 evaluated the applicants' background and experience
against four criteria: (a) educational background; (b) experience,
skills and knowledge of program planning; (c) experience, skills and
knowledge of technology and performer selection; and (d) experience in
program execution oversight, guidance, and reporting. S3 recommended the
selectee (SE) because he possessed a PhD in Electrical Engineering and
Computer Science from the Massachusetts Institute of Technology, which
fit with the research and development work done by ONR; he had worked at
the Activity on an internally funded project doing independent research as
the principal investigator; and, he had experience in technical writing,
presentation, management, and reporting of the research. S3 did not
recommend complainant because complainant's background and experience
was not as good as SE's.
Issue 2
Complainant's first-line supervisor (S1) maintained that he terminated
complainant during his probationary period because complainant failed to
follow proper procedures for requesting leave and for working at home.
S1 had counseled complainant verbally and via e-mail regarding the
requirements to request leave through supervision, and that working at
home had to be approved in advance and proper paperwork completed.
S1 stated that complainant demonstrated an unacceptable pattern
of behavior for an intern in the NCIP. S2 and S3 corroborated S1's
statements and concurred with S1's recommendation to terminate complainant
during his probationary period.
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
because the preponderance of the evidence of record does not establish
that discrimination occurred.3
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 tends 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 (S0900)
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 (Z1199)
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
November 11, 2007
__________________
Date
1 Due to a new data system, complainant's case has been re-designated
with the above-referenced appeal number.
2 We assume for the purposes of this decision that complainant is an
individual with a disability within the meaning of the Rehabilitation
Act.
3 We find that complainant failed to present sufficient evidence of
pretext or discriminatory animus.
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0120063464
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036