0120110882
02-11-2011
Dave A. Schmaltz, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Dave A. Schmaltz,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120110882
Agency No. 10-63-02349D
DECISION
Upon review, we find that the Agency's decision dated October 14, 2010,
dismissing Complainant's complaint for failure to state a claim is proper
pursuant to 29 C.F.R. �1614.107(a)(1). The Agency's decision dismissing
the complaint is AFFIRMED.
BACKGROUND
In his complaint, dated July 27, 2010, Complainant, a former Enumerator,
with the Agency's Westminster Local Census Office, Denver Regional
Census Center, alleged discrimination in retaliation for completing the
end-of-training session evaluation when he was terminated on May 5, 2010.
ANALYSIS AND FINDINGS
Complainant claimed that he was terminated in retaliation for his
less-than-complimentary review in the evaluation at the end of an
identified Crew Leader's training session. Complainant also stated that
instead of turning over the evaluations, including Complainant's, to a
proper Agency office, the identified Crew Leader reviewed them and took
the alleged retaliatory action at issue against him. The Agency stated
that Complainant was terminated because he had low post-training test
scores, had been out of communication with his supervisors in violation
of Agency policy, and had conducted an interview after sunset in violation
of Agency policy. The Agency also stated that there was no record in the
Agency tracking system of Complainant having previously engaged in any
protected opposition to discrimination. On appeal, Complainant does not
contest this. Upon review, we find that Complainant failed to identify
any basis within the purview of the regulations. 29 C.F.R. � 1614.101.
Accordingly, the Agency's final decision 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
2/11/11
__________________
Date
2
0120110882
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013