[Redacted], Rochell F., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency.Download PDFEqual Employment Opportunity CommissionMay 16, 2022Appeal No. 2020005083 (E.E.O.C. May. 16, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rochell F.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2020005083 Hearing No. 520-2019-00534X Agency No. 63-2018-00346D DECISION On September 10, 2020, 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 August 25, 2020, final order concerning her 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., 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Geographer, GS- 0150-12, at the Agency’s New York Regional Census Center in New York, New York. On October 16, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Puerto Rican, Black), sex (female), disability (physical), and age (over 40) when: 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. 2020005083 2 1. On August 20, 2018, [the Acting Supervisor] began to document [Complainant’s] time away from her desk; 2. From August 20 through September 5, 2018, she was subjected to unequal monitoring of work and had work removed; 3. On September 4, 2018, she became aware that she had been denied on-the-job training; 4. On September 7, 2018, she became aware that she was excluded from email correspondence sent by [name omitted], Area Regional Census Manager, soliciting resumes for the position of Geography Coordinator, GS-13, As a result, she was passed over for promotion in favor of someone who is less qualified that she is; and 5. She has received unprofessional communications from [the Area Regional Census Manager, Acting Supervisor, and Supervisory Geographer]. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing; however, on June 12, 2019, the AJ who was initially assigned to the matter determined sua sponte that the complaint did not warrant a hearing and issued the parties a Notice of Intent to Issue Decision Without a Hearing (Notice). The parties responded to the Notice on June 26, 2019. Complainant, in relevant part, urged the AJ to allow the matter to proceed to a hearing because there were genuine issues of material fact in dispute as to: 1) whether management criticized younger, White employees less frequently than Complainant; 2) whether Complainant spent more time away from her desk than similarly situated younger White employees; 3) whether the Agency had a policy of excluding staff who worked from home from promotions; and 4) whether the Area Regional Census Manager’s claim that he could not get in touch with Complainant to notify her of the solicitation was true. The following year, the Commission reassigned the matter to another AJ (AJ-2). Over Complainant’s objections, AJ-2 issued a decision without a hearing in favor of the Agency on August 13, 2020. The decision found that Complainant failed to substantiate her allegations of discrimination. In finding in favor of the Agency, AJ-2 initially found that Complainant could not prevail on claims 1, 2 (monitoring of work), and 5 because the underlying allegations in these claims consisted of mere remarks or comments that were unaccompanied by concrete action. Thus, AJ-2 concluded that “these incidents do not render her aggrieved according to Commission precedent.” With regard to Complainant’s removal of duties allegation in claim 2, AJ-2 found that the Acting Supervisor never permanently reassigned Complainant’s duties to another employee and that the Acting Supervisor had only assigned a new employee to support Complainant as necessary. 2020005083 3 For claim 3, concerning the alleged denial of training when management denied Complainant the opportunity to participate in monthly conference calls with state and local government officials, AJ-2 found that Complainant could not prevail because the record showed that the monthly conference calls were not training opportunities. Furthermore, AJ-2 was persuaded by management’s explanation that not everyone could attend the conference calls because “there was simply too much work that had to be done in preparation for the decennial census.” As for claim 4, concerning the solicitation for a detail opportunity, AJ-2 found that Complainant failed to provide any evidence showing that the Area Regional Census Manager intentionally excluded her. In so finding, AJ-2 carefully considered Complainant’s contention that the exclusion was punishment for working from home due to a disability; however, AJ-2 ultimately found Complainant’s contention to be speculative and insufficient to rebut the Agency’s assertion that Complainant was not notified of the email because she was not in the workplace and had been on extended leave. Finally, AJ-2 found that underlying incidents of discrimination were not sufficiently severe or pervasive to constitute a hostile work environment. The Agency subsequently issued a final order adopting AJ-2’s finding of no discrimination. This appeal followed. On appeal, Complainant largely reiterates the same contentions that she previously raised. The Agency opposes the appeal and requests that the Commission affirm its final order. 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. (Aug. 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 factfinder could not find in Complainant’s favor. 2020005083 4 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision. 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). 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. 2020005083 5 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 May 16, 2022 Date Copy with citationCopy as parenthetical citation