Dallas T.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (Bureau of the Census), Agency.Download PDFEqual Employment Opportunity CommissionNov 20, 20180120170486 (E.E.O.C. Nov. 20, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dallas T.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 0120170486 Agency No. 63-2015-00257 DECISION On November 10, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 11, 2016 final decision concerning his equal employment opportunity (EEO) 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 reasons which follow, the Commission AFFIRMS the Agency’s decision. ISSUE PRESENTED Has Complainant shown by a preponderance of the evidence that the Agency subjected him to unlawful harassment, including an unacceptable performance rating and termination? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Field Supervisor at the Agency’s Philadelphia Regional Office, U.S. Census Bureau in Philadelphia, Pennsylvania. Complainant began working for the Agency on January 24, 2015, and was terminated on December 22, 2015. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120170486 2 On November 6, 2015, Complainant filed an EEO complaint, later amended, alleging that the Agency discriminated against him on the bases of race (Black), age (60), and reprisal for protected EEO activity when: 1. In April 2015, he was threatened with an adverse personnel action; 2. On May 11, 2015, he received an unfavorable fiscal year 2015 mid-year review; 3. He was treated disrespectfully when, for example, on August 19, 2015, he was notified that a Field Representative had been selected and would be reporting to him without his prior knowledge or involvement in the hiring/selection process; 4. On November 13, 2015, he received an unacceptable performance review rating of 135 out of 500 points with negative comments; 5. On December 28, 2015, he was informed that his access to the Census’ network was disabled; and 6. He was terminated from federal service, effective December 22, 2015. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.2 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. (Aug. 5, 2015) (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”). Complainant has alleged that he was disparately treated. Therefore, his claims will be analyzed under a three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that 2 Complainant did not submit a timely brief. The Agency submitted its opposition to the appeal. 0120170486 3 would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). The prima facie case is dispensed with where the Agency has articulated reasons for its actions for which Complainant must show pretext. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Complainant has also alleged that he was subjected to unlawful harassment. A harassment claim is examined under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also Enforcement Guidance on Harris v. Forklift Systems. Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. Upon review, we find that the Agency did not subject Complainant to disparate treatment, unlawful discrimination or discriminatory harassment as alleged. The record does not support the conclusion that it was discriminatory animus that motivated the Agency in its alleged actions. With respect to claim 1, Complainant alleged that his supervisor threatened to write him up. The record discloses that the alleged threat was made by the supervisor because he refused to certify an employee’s time who did not report to him. Complainant’s supervisor denied threatening Complainant. She explained that occasionally a Field Supervisor had to certify time and attendance records for an employee not within his work group because the other Field Supervisor had already completed his payroll and the employee had missed their submission deadline. This request would only be requested when management was certain that the employee had worked the submitted hours. Complainant’s supervisor informed him that she had verified the employee’s time and advised Complainant that he could make a note in the payroll submission regarding his approval. Complainant himself missed deadlines and other management had to approve for him. Regarding claim 2, Complainant stated that the mid-year review was an attempt to slander him and create a false record as grounds for adverse personnel action to be taken against him. Complainant received the mid-year evaluation because he was performing below standards. His supervisor addressed Complainant’s areas of weakness and suggested ways for him to improve his performance and had counseled him repeatedly. She also pointed out his inappropriate conduct toward staff, co-workers, and management. Complainant alleges that he was treated with disrespect (claim 3). The example which he provided was that he was not included in the selection process of a new Field Representative for his team. 0120170486 4 Record evidence discloses that Complainant was informed of the vacancy on his team when he was hired and that interviews were being interviewed. Complainant’s supervisor stated that Field Supervisors did not typically interview Field Representatives. In addition, Complainant was new to the position of a Field Supervisor and he was not yet trained for the position. Claims 4 and 6 are allegations concerning Complainant’s performance evaluation and termination. His performance review was based on his poor performance and not for any discriminatory reason. Complainant failed in almost all critical elements of his performance standards. Complainant had poor communication skills and there were numerous complaints about him yelling at his subordinates. He was also difficult to work with. Complainant was found lacking in leadership and in providing customer service. He had a poor working relationship with his team and with his supervisors and was disrespectful. Complainant did not perform his administrative duties, including meeting payroll time frames and completing surveys in a timely manner. Complainant’s unacceptable performance was the reason for his termination. Regarding claim 5, being denied access to the Census’ network, the record reveals that he was denied access because he was terminated. The Federal Express package that Complainant declined signing for contained his termination notice. Had he signed for its delivery, he would have been aware that he was being terminated and therefore would no longer have access to accounts in the Census’ network. In sum, we find that Complainant failed to show by a preponderance of the evidence that he was subjected to a hostile work environment, treated disparately, or discriminated against on any basis. We have examined all of the circumstances, including the frequency of the alleged discriminatory conduct, its severity, whether it was physically threatening or humiliating, whether it unreasonably interfered with his work performance and whether the alleged harassment was by a supervisor. Harris v. Forklift Systems, 510 U.S. at 23. Further, the Agency has articulated legitimate, nondiscriminatory reasons for its actions for which Complainant has not shown to be pretext. Pretext is more than an assertion or a belief by a complainant that he has been subjected to discrimination. Belief, however genuine, does not constitute evidence of pretext. See Mroz v. Dep't of Defense, EEOC Appeal No. 01A33187 (Jan. 23, 2004). Pretext means that the reason offered by management is factually baseless, is not the actual motivation for the action, or is insufficient to motivate the action. Tincher v. Wal-Mart Stores, Inc., 118 F.3d 1125, 1130 (7th Cir. 1997); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). Absent proof of a discriminatory motive, the Commission has consistently held that we will not second-guess an employer’s decision. The complainant always carries the ultimate burden of persuading the trier of fact that he has been the victim of intentional discrimination. Complainant has failed to carry this burden. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s finding of no discrimination. 0120170486 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 0120170486 6 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 Complainant’s 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 November 20, 2018 Date Copy with citationCopy as parenthetical citation