0120113623
01-13-2012
Richard V. Sandoval, Complainant, v. Gary Locke, Secretary, Department of Commerce (Bureau of the Census), Agency.
Richard V. Sandoval,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 0120113623
Agency No. 10-63-00865D
DECISION
Complainant appeals to the Commission from the Agency’s final decision
dated June 16, 2011, finding no discrimination. For the following
reasons, we AFFIRM the Agency’s final decision.
BACKGROUND
In his complaint, Complainant, a former Clerk, Crew Leader Assistant and
Enumerator with the Honolulu Local Census Office alleged discrimination
based on disability (service connected) and in reprisal for prior EEO
activity when he was subjected to harassment in that:
(1) On January 16, 2010, his coworker, a Crew Leader (CL), told him that
if Complainant made him look bad during the Group Quarters Validation
(GQV), then the CL would “screw” up Complainant.
(2) On February 2, 2010, the CL told him not to “piss him off” or
“burn bridges.”
(3) On February 5, 2010, the CL told him to read a manual because he
did not know what he was doing.
(4) On February 9, 2010, the CL stated “hi girls” to a group of men.
(5) On February 25 and 26, 2010, he spoke to his manager regarding the
CL’s harassment and received no resolution.
(6) On March 4, 2010, when he was seated with female employees at the
office, the CL stated “Yeah, go sit with the rest of the women.”
(7) The CL repeatedly told him that Complainant’s supervisors wanted
to terminate him.
(8) The CL told him not to talk to the supervisors, described above,
and even after the supervisor reassigned him to a new Crew Leader,
the CL continued to interfere with his work.
After completion of the investigation of the complaint, Complainant
requested a final Agency decision. The Agency thus issued its final
Agency decision concluding that it asserted legitimate, nondiscriminatory
reasons for its actions, which Complainant failed to rebut.
ANALYSIS AND FINDINGS
After a review of the record, we, assuming arguendo that Complainant had
established a prima facie case of discrimination, find that the Agency
has articulated legitimate, nondiscriminatory reasons for the alleged
incidents. With regard to claim (1), the CL denied making that remark
to Complainant. The CL stated that from September to November 2009,
Complainant was a Crew Leader Assistant and was the CL’s supervisor.
The CL also indicated that his assignment at the Agency ended in November
2009, and he was not rehired back to the Agency until January 26, 2010.
During that time period, the CL and Complainant stayed as friends.
With regard to claims (2) and (3), the CL stated that Complainant took
liberties/advantage of their prior friendship and the remarks were made
to Complainant as personal advice and not in a discriminatory nature.
Report of Investigation (ROI), Exhibit (Ex.) 9.
With regard to claim (3), the CL indicated that he might have made that
remark as advice to Complainant and to anyone who had questions on their
responsibilities. Id.
With regard to claim (4), the CL did not recall the incident. Complainant
indicated that he was with his coworker, a female, when the CL purportedly
made that remark. Complainant’s January 14, 2011 Rebuttal Statement
(CRS) at 4.
With regard to claim (5), Complainant’s supervisor indicated that
the manager, identified by Complainant in the complaint, informed her
of Complainant’s harassment claim during the relevant time period.
The supervisor stated that since then, she and another supervisor
monitored the CL and Complainant was then reassigned to a different Crew
Leader. ROI, Ex. 11. The supervisor and the manager concurred that
Complainant informed them that he was satisfied with the reassignment
and they received no further complaints from him. Id. Complainant does
not dispute this.
With regard to claim (6), the CL stated that during the relevant time
period, he had no supervisory responsibility over Complainant and
denied making the remark. ROI, Ex. 9. There is no evidence, apart
from Complainant’s assertions, that the purported remark was made
toward Complainant.
With regard to claim (7), the CL did not recall the alleged remark.
There is no evidence that Complainant was subsequently terminated.
Complainant’s supervisor indicated that when she was informed of this
remark, she assured Complainant that there was no plan to terminate
his employment. ROI, Ex. 11.
With regard to claim (8), the CL denied purportedly interfering with
Complainant’s work. Complainant’s supervisor indicated that they
were not aware of any continued interference by the CL as they were
working in different areas after Complainant’s reassignment. Id.
The Agency stated that the CL was subsequently terminated for lack
of work on July 30, 2010. Final Agency Decision at 4; ROI, Ex. 12.
The Agency also stated that Complainant was converted from his Crew
Leader position to Census Coverage Measurement (CCM) Enumerator on July
14, 2010, and then to CCM Crew Leader Assistant on August 14, 2010,
and was terminated for lack of work on September 16, 2010. Id.
There is no evidence that Complainant was treated less favorably than
a similarly situated employee under similar circumstances. It appears
that Complainant was dissatisfied with the CL’s behavior toward not
only him but to all his coworkers. In fact, Complainant indicated that
during the CL’s training from September 28 – October 19, 2009, the CL
constantly challenged his instructor and belittled her knowledge. ROI,
Ex. 8. Complainant further stated that the CL constantly “manipulated,
bullied, and belittled the value of coworkers and took credit for their
work.” Id. With regard to his claim of harassment, we find that
Complainant failed to establish the severity of the conduct in question
constituted a hostile work environment or that the alleged incidents
of harassment were related to any protected bases of discrimination.
The Commission does not address in this decision whether Complainant
is a qualified individual with a disability. Furthermore, we note that
Complainant has not claimed that he was denied a reasonable accommodation.
Based on the foregoing, we find that Complainant has failed to show that
the Agency’s actions were motivated by discrimination as he alleged.
CONCLUSION
Accordingly, the Agency’s final decision 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” 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 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
1/13/12
__________________
Date
2
0120113623
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120113623