0120102660
09-16-2010
Stacey B. Gray, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Stacey B. Gray,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120102660
Agency No. 09-63-00179D
DECISION
Complainant appeals to the Commission from the Agency's decision dated April 22, 2010, finding no discrimination. For the following reasons, we AFFIRM the Agency's decision.
BACKGROUND
In the complaint, Complainant, a former Recruiting Assistant (RA) at the Agency's Erie Local Census Office, Philadelphia Regional Census Center, alleged discrimination based on sex (male to female transsexual), perceived sexual orientation, and failure to conform to sexual stereotypes when on February 13, 2009, Complainant was terminated from employment at the Agency.
After completion of the investigation of the complaint, Complainant did not request a hearing. The Agency then issued its 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 termination. We note that the Commission has no jurisdiction over sexual orientation discrimination. The basis of sex discrimination, however, will be adjudicated in this decision. On January 14, 2009, Complainant was hired to the position of RA with a not-to-exceed date of March 14, 2009. Report of Investigation (ROI), Exhibit 17 (Ex. 17). The Agency stated that Complainant was terminated because: Complainant's recruiting numbers were too low; Complainant made requests for night differential pay without prior authorization; Complainant incorrectly requested telephone reimbursement without proper accompanying documentations; and Complainant was argumentative. Specifically, the Agency indicated Complainant had the lowest total of applicants tested (recruits) with 18 for the months of January and February 2009. The three highest total applicants tested by female RAs were 361, 231, and 201 for the same time periods, and the three lowest were 18 (by Complainant), 43, and 67. ROI, Exhibit 22. The three male RAs had total applicants tested of 180, 202, and 227 for the same time periods. Id.
Despite Complainant's contentions on appeal, we find that Complainant failed to show any similarly situated employee who was treated more favorably with regard to similar performance deficiencies. After a review of the record, we find that Complainant has failed to show that the Agency's action to terminate Complainant was motivated by sex discrimination (or sexual stereotyping) as she alleged.
CONCLUSION
The Agency's 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
9/16/10
__________________
Date
2
0120102660
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013