Richardv.Sandoval, Complainant, v. Gary Locke, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity CommissionJan 13, 2012
0120113623 (E.E.O.C. Jan. 13, 2012)

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