[Redacted], Lenard H., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency.Download PDFEqual Employment Opportunity CommissionMar 28, 2023Appeal No. 2022000159 (E.E.O.C. Mar. 28, 2023) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lenard H.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2022000159 Hearing No. 440-2020-00233X Agency No. 63-2020-00025D DECISION On October 8, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 9, 2021, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND On November 13, 2018, Complainant began a temporary appointment as Area Manager, GG- 0301-13-00/01, with the Agency’s Chicago Regional Office. An Area Manager is responsible for assisting the Assistant Regional Census Manager (ARCM) in the management of all field, office, and evaluation operations for the Decennial Census over an assigned geographic area. On April 4, 2019, Complainant was assigned to oversee the Kansas City Area Census Office (ACO). During the relevant time, the ARCM was Complainant’s first line supervisor. The Deputy Regional Director (DRD) was Complainant’s second level supervisor. Person A, working as the Lead Census Field Manager, was a subordinate to Complainant. 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. 2022000159 2 On December 12, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and in reprisal for protected EEO activity (opposition to discrimination) when: On September 6, 2019, Complainant was terminated for what he states were false allegations surrounding a romantic relationship between himself and another employee, as well as false allegations of unacceptable performance. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The Agency filed a motion for summary judgment. Complainant filed a response to the Agency’s motion. The Agency filed a reply to Complainant’s response. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision without a hearing on August 3, 2021. In his decision, the AJ found Complainant had not established a prima facie case of reprisal. The AJ noted Complainant claimed opposition to unlawful discrimination as his protected EEO activity. Complainant claimed that he opposed unlawful discrimination when he approached the DRD on multiple occasions to voice his concerns of sex-based discrimination from the ARCM. The AJ noted the DRD’s affidavit stated Complainant raised “concerns, but didn’t go into specifics. He didn’t say he was being harassed based on his sex or reprisal. He expressed some concern about [the ARCM’s] management style.” The AJ noted Person A’s affidavit provided evidence of statements the ARCM made; however, it did not offer information regarding anything Complainant related to the ARCM or the DRD. The AJ noted in Complainant’s affidavit, in response to the question to identify the EEO activity he engaged in, he stated, “On numerous occasions, I approached [the DRD] about the inappropriate activities by [the ARCM].” The AJ noted in the next question, Complainant also discusses additional personal notes about the ARCM’s behavior, but that this did not reflect the content of the communications Complainant made to the DRD. The AJ concluded that even taking Complainant’s evidence at face value, he did not provide sufficient evidence for a reasonable factfinder to conclude that he engaged in protected activity in the course of communication with the DRD. The AJ found Complainant established a prima facie case of disparate treatment on the basis of sex. The AJ noted that Complainant alleged, which was supported by affidavit testimony, that the ARCM referred to him as “that man” in a variety of demeaning statements. The AJ found Complainant’s allegation was sufficient to provide some evidentiary link between his membership in the protected class and the adverse employment action. The AJ noted as a result the burden moved to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. The Agency stated on August 14, 2019, during a visit to the Kansas City Office, it was discovered that field workers were showing up to training locations with no trainers present, classes were held with no appointment packets, badges were missing, and in some cases, laptops were not sent to the trainer. 2022000159 3 Also, it was noted the Record of Training was not being shipped to the ACO in a timely manner, there were delays in receiving orientation packets, and the new hires were therefore delayed. Further, problems with the Production Lister Classes in Little Rock, Arkansas were noted, to include the short length of the class, the absence of laptops in one class which resulted in field workers being sent home without training, and two classes which had laptops but in which the field workers could not log in and were sent home without full training. It was also noted that the Quality Control program was not managed properly. The AJ found the Agency met its burden. The AJ found Complainant failed to present grounds for finding the Agency’s actions were a pretext for discrimination. The AJ noted Complainant’s affidavit response provided meager grounds to question the accuracy of the allegations surrounding Complainant’s performance. Complainant stated he was unaware of some of the problems, some were nationwide problems unrelated to him, and one he had addressed concerning time and attendance training. The AJ found this statement did not refute the allegations. Specifically, Complainant did not state which problems he was unaware of or why he would not be responsible for them despite being the Area Manager. Similarly, he did not state which problems were nationwide or why he would not have responsibility for them even if they were widely occurring. Further, time and attendance training did not appear as a significant problem in the deficiencies identified. The AJ found “in light of the existing non-discriminatory reason, which is unquestioned on the basis of its accuracy and for which there are no comparators, references to ‘that man’ would not show pretext.” Finally, the AJ noted Complainant claimed he was subjected to harassment on the basis of sex stating the ARCM treated him in an unprofessional and disrespectful manner, countermanded his instructions, purposefully excluded detailed information from him, spoke to him in a derogatory manner, and removed him on frivolous charges of poor performance. The AJ noted that as the termination was not due to discrimination, it could not contribute to a hostile work environment. The AJ noted the derogatory treatment consisted of comments about not wanting to hear from “that man” and words to that effect. When the ARCM countermanded Complainant, she held a higher supervisory position to Complainant. Complainant did not articulate what information was excluded from him. The AJ found Complainant attempted to convert Title VII into a code of civility and found that while unpleasant, the interactions, did not rise to the level of severity or pervasiveness as to constitute a hostile work environment. The Agency subsequently issued a final order on September 9, 2021. The Agency’s final order fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Thereafter, Complainant filed the instant appeal. 2022000159 4 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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 rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review, we conclude that the AJ correctly determined that Complainant failed to establish a prima facie case of reprisal since he failed to show that he engaged in protected activity in the course of communication with the DRD. Even assuming Complainant established a prima facie case of reprisal, we find no material facts that would warrant a hearing regarding the claim of reprisal and we find no retaliation for this complaint. We also find the AJ properly found the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency based on his sex as alleged. The Agency stated Complainant was terminated for specific instances of unacceptable performance. There is no evidence in the record that to show the Agency’s actions were false or a pretext for discrimination. Further, we note that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination or retaliation as he alleged. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Even if the incidents occurred as alleged, we find such incidents insufficiently severe to constitute a hostile work environment. 2022000159 5 We find the described incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. We also find that Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory animus. Upon careful review of the evidence of record, including the parties’ arguments on appeal, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against or subject to retaliation by the Agency. CONCLUSION Accordingly, the Agency’s final order finding no discrimination or retaliation is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2022000159 6 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (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 March 28, 2023 Date Copy with citationCopy as parenthetical citation