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

Equal Employment Opportunity Commission

Jan 22, 2015

0120141441 (E.E.O.C. Jan. 22, 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. 0120141441

Agency No. 63-2012-01834

DECISION
Complainant appeals to the Commission from the Agency’s final decision dated February 6,
2014, finding no discrimination concerning her complaint alleging employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C.
§2000e 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 decision
finding of no discrimination.

BACKGROUND
In her complaint, Complainant, a former Field Representative (FR), GS-0303-04/01, at the
Agency’s Chicago Regional Office alleged discrimination based on race (Black), sex (female),
age (over 40), and in reprisal for prior EEO activity when:

(1) She was subjected to harassment when:
(a) Supervisory Survey Statistician (SSS1) and Senior Field Representative (SFR1)
subjected her to rude and unprofessional behavior, bullying, and intimidation;
(b) SFR1, SFR2, and SFR3 repeatedly asked questions about her personal life, and
questioned as to whether or not she had a relationship with Chicago Regional Director;
(c) SFR1 “repeatedly harassed” her regarding a report she wanted her to do; and
(d) She was subjected to three observations within a three-month period.

(2) On March 10, 2012, her Assistant Regional Director terminated her term appointment.

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After completion of the investigation of the complaint, Complainant requested a hearing which
was denied due to her failure to comply with discovery orders. On appeal, Complainant does
not dispute this. The Agency thus issued its final Agency decision concluding that it asserted
legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut.

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 incidents. The record indicates that Complainant was originally hired
as a FR under a term appointment with a not to exceed date of December 10, 2011, which was
extended to a not to exceed date of March 10, 2012. As a FR, Complainant was required to
locate and interview respondents to collect data on a short-term survey by personal visit or
telephone and using established techniques to persuade refusing respondents to participate.

With regard to claim (1), Complainant claimed that she was harassed by her managers and
supervisors when they called her all hours of the day and the night or sent her electronic
messages requesting information about her work. Complainant also claimed that SFRs asked
her about private matters including her marriage, her children, and her personal relationship
with the Regional Director. SSS1 denied harassing Complainant and stated that her primary
method of communication with Complainant was through group electronic messages. SSS1
also indicated that Complainant never complained to her about being harassed as alleged during
the relevant time period at issue. The SFRs also denied harassing Complainant as alleged or
asking her about personal matters. Specifically, SFR1 stated that it was her job as a SFR to
keep track of all cases assigned to all FRs in her team, including Complainant. SFR1 stated
that it was actually Complainant who was rude and unprofessional to her in that when she
telephoned Complainant about the missing reports as she and all other FRs were required to
submit, Complainant was angry and hung up on her. Complainant acknowledges this. SFR1
also indicated that Complainant, instead of reporting her survey information directly to her,
reported her survey to SSS2.

SSS1 indicated that all field staff, including FRs, were observed on at least two occasions in
order to provide feedback as to the job they were doing. SFR1 stated that she was instructed
by SSS2 to select one FR from her team to observe and she selected Complainant because they
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lived in close proximity to each other. SFR2 indicated that SSS1 asked her to observe
Complainant’s work. SFR2 stated that Complainant was difficult to work with, unpleasant,
and uncooperative. Specifically, SFR2 indicated that on her first observation day, despite her
instruction, Complainant refused to interview the resident and also ran a red light so SFR2
could not follow her car and lost her before the next interview. On her second and third
observation days, stated SFR2, Complainant did not show up as scheduled indicating that she
had trouble securing childcare and that traffic was too heavy. As a result, SFR2 stated that she
never observed Complainant as scheduled.

With regard to claim (2), SSS1 indicated that Complainant was originally hired under a
temporary appointment with a not to exceed date of December 10, 2011, which was
subsequently extended with a not to exceed date of March 10, 2012. SFR1 recommended not
extending Complainant’s appointment beyond March 10, 2012, and SSS1 and SSS2 approved
that recommendation. SSS2 stated that Complainant: had problems with cases requiring more
effort; did not work well with SFR1; and failed to follow her normal supervisory chain of
command by directly contacting him instead of contacting SFR1 (i.e., Complainant’s
immediate supervisor). SFR1 also stated that Complainant: was rude and uncooperative and
hung up the telephone on her when she called her concerning her reports; failed to provide her
with weekly status reports as all FRs were required to do; failed to directly contact her for
assistance and instead contacted SSS2; and produced only a minimal amount of work during
the two months while she was assigned to the Rental Housing Finance Survey.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. With regard to her claim of
harassment, we find that Complainant failed to establish the severity of the conduct in question
or that it was related to any protected basis of discrimination. Furthermore, 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 has
failed to show that the Agency’s actions were motivated by discrimination as she alleged.

CONCLUSION
Accordingly, the Agency’s final decision finding of 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:

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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
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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 22, 2015