Complainant,v.Penny Pritzker, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Jan 24, 2014

0120123229 (E.E.O.C. Jan. 24, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Penny Pritzker,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.

Appeal No. 0120123229

Hearing No. 510-2010-00342X

Agency No. 09-63-00784D

DECISION
Complainant filed an appeal from the Agency’s final order dated July 12, 2012, finding no
discrimination with regard to his complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND
In his complaint, filed on August 31, 2009, Complainant alleged discrimination based on race
(Caucasian) when on July 6, 2009, he was terminated from his temporary appointment as
Assistant Manager for Field Operations (AMFO). Upon completion of the investigation of the
complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On
June 13, 2012, the AJ issued a decision without holding a hearing, finding no discrimination.
The Agency’s final order implemented the AJ’s decision.

ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
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a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.

, 846 F.2D 103, 105 (1st Cir. 1988).
A fact is “material” if it has the potential to affect the outcome of the case. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists. Moreover, despite Complainant’s contentions on appeal, we find the
record was fully developed.
In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged termination. The record indicates that during the relevant time period,
Complainant was an intermittent employee, was hired as an AMFO for a temporary, short-
term appointment within the Agency’s Field Operations of the Montgomery Office, Alabama
Early-Opening Local Census Office. Complainant’s appointment had a not-to-exceed date of
September 30, 2009. Complainant was expected to work closely with the identified Assistant
Manager for Administration (AMA), African-American, to ensure timely function of the
payroll and the meeting of quality goals.

Complainant’s supervisor indicated that on July 1, 2009, he received an electronic message
from the AMA indicating that Complainant made a racial remark to her on that day while they
and other employees were talking about how cold they were. Specifically, Complainant told
her that “well, we will bring the cage when the monkey starts jumping up and down and
yelling,” which made her upset and embarrassed and hurt her feelings. On the same day,
another employee, also African-American, indicated to the supervisor that she witnessed
Complainant refer to the AMA as a monkey, and although he was trying to make a joke, she
did not feel it was funny and she, too, took it as a racist remark, in the presence of others.
Complainant acknowledged that he did tell the AMA, “who rattled your cage. If we wanted to
hear from you, we would let the monkeys out of their cages.” After receipt of the foregoing
information, stated the supervisor, on July 2, 2009, he submitted to the Assistant Regional
Census Manager for the Atlanta Regional Census Center the above two statements along with a
Documentation of Conduct and/or Performance Problems reporting the incident. Although the
supervisor recommended Complainant be given oral counseling regarding the incident, the
Assistant Regional Census Manger instructed him to immediately terminate Complainant’s
temporary appointment.

Based on the foregoing, the AJ determined and we agree that the Agency articulated legitimate,
nondiscriminatory reasons for Complainant’s termination. Complainant admitted making the
remarks to the AMA calling her a monkey. Furthermore, we find that Complainant failed to
show that he was treated less favorably than a similarly situated employee under similar
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circumstances. Based on the foregoing, we find that Complainant failed to show that the
Agency’s action was motivated by discrimination as he alleged.

CONCLUSION
Accordingly, the Agency’s final order 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
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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

Date
January 24, 2014