0120073535
08-01-2008
Robert J. Miller, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Robert J. Miller,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120073535
Agency No. 06-56-107
DECISION
Complainant appeals to the Commission from the agency's decision dated
July 6, 2007, finding no discrimination. In his complaint, complainant
alleged discrimination based on age (over 40) when he was terminated
from his employment during his probationary period with the agency on
September 15, 2006.
After completion of the investigation of the complaint, complainant
requested a final agency decision without a hearing. The agency
then issued its decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which complainant failed to
rebut.
Initially, it is noted that complainant also alleged in his complaint that
his termination was also based on his disability (multiple sclerosis).
However, on appeal, complainant submits that he is not appealing the
agency's decision based on his disability. Accordingly, we do not
address the alleged discrimination based complainant's disability in
this decision.1
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of age discrimination,
finds that the agency has articulated legitimate, nondiscriminatory
reasons for the alleged termination. The agency indicated that
complainant was hired as a probationary Patent Examiner, GS-1224-09, on
May 1, 2006. Management stated that complainant's termination was based
strictly on his failure to adequately perform his duties. Complainant's
supervisors stated that after four months of employment, complainant still
did not address all of the claims of his cases and submitted his work
in draft form, and not a final work product. Upon review, we find that
complainant failed to prove that the agency's reasons stated above were
pretext for the alleged discrimination. We also find that complainant
failed to provide any similarly situated individuals who were treated
better than he was treated or that the agency's decision to terminate
complainant was motivated by discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 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 (S0408)
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 (Z0408)
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
8/1/08
__________________
Date
1 Complainant makes no reference to the agency's dismissal of the basis
of marital status for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1). The Commission has no jurisdiction over claims of
marital status discrimination.
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0120073535
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036