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

Equal Employment Opportunity Commission

Sep 1, 2015

01-2013-0237-0500 (E.E.O.C. Sep. 1, 2015)

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. 0120130237

Hearing No. 510-2011-00433X

Agency No. 11-63-03301D

DECISION

Complainant filed an appeal from the Agency’s final order dated September 19, 2012, finding
no discrimination with regard to his complaint alleging employment discrimination in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
§791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. § 621 et seq. For the following reasons, we AFFIRM the Agency’s final order finding
no discrimination.

BACKGROUND

In his complaint, dated January 17, 2010, Complainant alleged discrimination based on
disability (recovering alcoholic) and age (over 40) when on May 25, 2010, the Agency found
him ineligible for employment. Upon completion of the investigation of the complaint,
Complainant requested a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). On August 23, 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
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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,
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.

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 incident. The Agency indicated that on February 5, 2010, Complainant
applied and took the test for temporary employment as a Temporary Census Worker at its
Livonia Local Census Office in the Detroit Regional Census Center. Complainant indicated
that on his application, he disclosed his prior conviction for misdemeanor DUI (Driving Under
the Influence) which occurred in 2007. Complainant stated that he was convicted of the
offense Operating While Intoxicated, served one year of probation, and was discharged from
probation on May 8, 2008.

The Agency stated that on February 25, 2010, it sent Complainant a letter indicating that its
criminal background check, which it conducted for all applicants, revealed a tentative match
between him and an arrest record and requested him to submit official court documentation on
any and all arrests and/or convictions from his past if he did not dispute the identity of the
arrest record in question or to submit an original set of fingerprints if he disputed the identity
of the arrest record in question. Therein, Complainant was informed to provide the requested
information within 30 days. Complainant subsequently sent a letter to the Agency about his
claimed disability and treatment. He also forwarded a copy of an Order discharging him from
the probation he served as a result of his 2007 DUI conviction. The Agency stated that it
determined Complainant ineligible for employment since his DUI sentencing occurred within
three years of his application for employment pursuant to its policy.

Upon review, we find that Complainant failed to show that the Agency’s articulated reasons
were a mere pretext for discrimination. We find that Complainant failed to show that he was
treated less favorably than a similarly situated employee under similar circumstances. It is
noted that we do not address in this decision whether Complainant is a qualified individual with
a disability. Complainant claimed that he was not hired based on his age and his disability in
that the Agency “failed to consider whether he was a current substance (alcohol) abuser at the
time of his application.” He stated that he had not consumed alcohol more than for more than
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four years since his 2007 DUI. Complainant does not allege any disparate impact in the
Agency’s action. After a review of the record, 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 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”
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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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainants Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 1, 2015
Date