0120113728
01-13-2012
Dale A. Speelman, Complainant, v. Gary Locke, Secretary, Department of Commerce (Bureau of the Census), Agency.
Dale A. Speelman,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 0120113728
Agency No. 10-63-00796D
DECISION
Complainant appeals to the Commission from the Agency’s final decision
dated June 28, 2011, finding no discrimination. For the following
reasons, we AFFIRM the Agency’s final decision.
BACKGROUND
Complainant filed his complaint on April 30, 2010, alleging discrimination
based on race (White), sex (male), and disability (diabetes) when on March
12, 2010, the Agency forced him to resign, and when his supervisor denied
him access to the restroom. After completion of the investigation of
the complaint, Complainant requested an immediate final Agency decision.
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 actions.
The record indicates that Complainant was hired as a temporary Recruiting
Assistant (RA) at the Odessa, Missouri, Local Census Office (LCO), on
January 4, 2010. Complainant’s Deputy Regional Director stated that
Complainant did not resign on March 12, 2010, as he alleged, rather he was
terminated from his employment on March 11, 2010. Report of Investigation
(ROI), Exhibit (Ex.) 13. On appeal, Complainant does not dispute this.
Specifically, the Director indicated that late in the afternoon on March
11, 2010, she received a call from an identified Partnership Assistant
(PA), who was in charge of the Census outreach activities at the Sprint
Center, telling her that she was threatened by Complainant who also
participated at the event along with a few other RAs from the Odessa LCO.
Specifically, the Director stated that the PA told her that Complainant
took some of the Partnership Outreach promotional items from the stock
they had brought to the event and when she asked him to return those
items, he refused and challenged her authority. Id. After that call,
the Director invited two managers into her office and called Complainant
concerning the foregoing incident. When one of the managers asked
Complainant, in the speakerphone, about him taking the promotional items,
he became defensive, rude, belligerent, and disrespectful. The Director
indicated that Complainant was shouting and yelling, and at the end of
the conversation one of the managers told Complainant to leave the event
and go home and that he would be contacted by his immediate supervisor
next day. The Director stated that after talking with Complainant,
she and the managers discussed the incident and collectively decided to
terminate Complainant’s employment immediately on March 11, 2010.
The PA stated that at the relevant incident date, she saw Complainant had
several bags packed with several promotional hats, shirts, plastic cups,
coffee cups, pens, pencils and other items. ROI at 139. When she asked
him what he was doing, he told her to mind her own business. The PA
stated that when she told him that that was stealing and told him to
put them back or she was going to call the Director, Complainant began
screaming and yelling and telling her that she was the Census taleteller
and told her to “go to hell” at which time she called the Director.
Id. The PA further indicated that after Complainant hung up talking
to the Director, described above, he told her “I hope you’re happy
bitch, I ought to kick your ass. You better hope I never see you again
and still yelling he walked away, still with items he stole.” Id.
On appeal, Complainant does not dispute the foregoing statements.
Complainant’s coworker, also a RA, indicated that he was there with
Complainant during the alleged event, described above, and took some
promotional pencils along with Complainant. ROI, Ex. 17. However,
when the PA told him that those were not for them but belonged to the
Partnership and told him to put them back, he did so. Id.
The manager, described above, stated that next day on March 12, 2010,
he and Complainant’s supervisor met with Complainant to discuss
his action at the Spring Center event the day before. ROI, Ex. 14.
The manager indicated that during the discussion, Complainant began
screaming and arguing about the incident. The manager stated that he
told Complainant the decision had been made to terminate him for what
had happened at the event and for being insubordinate to his superiors
over the telephone on March 11, 2010. With regard to Complainant’s
claim concerning his access to the restroom, the manager indicated that
he recalled Complainant asking to go inside the office since their
discussion was held in the vestibule of the building but he did not
recall Complainant mentioning anything about needing to use the restroom
or saying anything about having any medical or physical condition. Id.
On appeal, Complainant does not dispute this matter.
Complainant’s supervisor indicated that Complainant was also
previously counseled on January 20, 2010, concerning his inappropriate
interaction with a City Clerk at the Liberty City Hall. ROI, Ex. 15.
Complainant disputed the foregoing statement indicating that he was not
at the Liberty City Hall at that time but was at the Clay County Annex.
ROI, Ex. 12; Complainant’s Appeal Brief at 13. After a review of the
record, we find that even if the supervisor’s statement was not true,
it was harmless since the decision to terminate Complainant was not made
by the supervisor but by the Director and the managers solely based on
the March 11, 2010 incident. The Commission does not address in this
decision whether Complainant is a qualified individual with a disability.
Furthermore, we note that Complainant has not claimed that he was denied
a reasonable accommodation. Complainant has not linked any Agency action
to discrimination. 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 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
1/13/12
__________________
Date
2
0120113728
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120113728