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

Equal Employment Opportunity Commission

Apr 4, 2014

0120131240 (E.E.O.C. Apr. 4, 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. 0120131240

Hearing No. 510-2011-00207X

Agency No. 10-63-01412D

DECISION
Complainant appeals to the Commission from the Agency’s final decision finding no
discrimination. For the following reasons, we AFFIRM the Agency’s final decision finding of
no discrimination.

BACKGROUND
In her complaint, dated June 6, 2010, Complainant, a former employee of the Agency, alleged
discrimination based on race (Black) and disability when her supervisor stopped giving her
work assignments as of May 11, 2010.1

After completion of the investigation of the
complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ) but
later withdrew the request. The Agency issued its final Agency decision concluding that it
asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to
rebut. Complainant files no appeal brief.

1 In her Complaint, Complainant also alleged discrimination in reprisal without identifying any
EEO activity. The Agency previously dismissed, which we affirm, the basis of reprisal since
there is no record of Complainant having previously engaged in activity protected by any EEO
statutes. On appeal, Complainant does not contest this. Even if Complainant had stated a
claim of retaliation, we find no evidence that the Agency’s legitimate, nondiscriminatory
reasons were a pretext for discrimination.
0120131240

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ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614

, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “review the
documents, statements, and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s own assessment of the
record and its interpretation of the law”).
After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incident. The record indicates that on April 27, 2010, Complainant was
hired as an Enumerator, a temporary appointment, to work primarily in Gaffney, South
Carolina. Complainant claimed that the supervisor stopped giving her work on May 11, 2010.

The supervisor indicated that after about a week after her Enumerator training, Complainant
was involved in a car accident on May 5, 2010, which she claimed took place while on duty.
The supervisor stated that Complainant, however, failed to follow Agency procedures for
reporting it and submitted an estimate for the car’s repairs that exceeded the car’s value and
damages that could have resulted from the type of accident she described. An identified CLA
indicated that during the relevant time period, Complainant told her that she “backed into a
ditch,” but, when she saw the car, the damages were on the front. The supervisor indicated
that management suspected that Complainant was attempting to get the Agency to pay for pre-
existing damage to the car. Thus, the Field Operations Supervisor (FOS) instructed the
supervisor not to give further work to Complainant until the matter was cleared up. The
Agency indicated that Complainant’s accident claim was denied on June 9, 2010, and by then,
there was no more work left for the Gaffney unit. Thus, Complainant was terminated for lack
of work on July 20, 2010, and the supervisor, herself, was also terminated soon after for the
same reason.2

Assuming (without deciding) that Complainant was an individual with a disability, we find that
she failed to show that she was denied a reasonable accommodation or that she was required to
perform the duties beyond her medical restrictions. Upon review, we find that Complainant
failed to show that she was treated less favorably than a similarly situated employee under
similar circumstances. Based on the foregoing, we find that Complainant failed to show that
the Agency’s action was motivated by discrimination as she alleged.

2 Complainant’s termination is not a live issue in the instant complaint.
0120131240

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CONCLUSION
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.

0120131240

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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
April 4, 2014