0120122295
10-04-2012
William C. Hugenberg, Jr., Complainant, v. Dr. Rebecca Blank, Acting Secretary, Department of Commerce (Bureau of the Census), Agency.
William C. Hugenberg, Jr.,
Complainant,
v.
Dr. Rebecca Blank,
Acting Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 0120122295
Hearing No. 550-2011-00148X
Agency No. 10-63-00684D
DECISION
Complainant filed an appeal from the Agency's final order dated March 12, 2012, finding no discrimination with regard to his complaint. For the following reasons, we AFFIRM the Agency's final order.
BACKGROUND
In his complaint, dated April 20, 2010, consisting of 25 pages, Complainant, a former Agency employee, alleged discrimination based on religion (agnostic), national origin (German by association), and age (over 40) when he was terminated on February 23, 2010.1 Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On February 24, 2012, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency's final order implemented the AJ's decision.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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 this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists.
In the instant case, assuming arguendo that Complainant had established a prima facie case of discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory reasons for his termination. The record indicates that on September 28, 2009, Complainant was appointed to an excepted service appointment, not-to-exceed of September 25, 2010, as a Local Census Office Manager at the Agency's Grand Junction Local Census Office (GJLCO) in Denver. Complainant's first level supervisor (S1) stated that Complainant was terminated from his position due to his unacceptable conduct and performance. Specifically, S1 indicated that the termination action was primarily based on Complainant's inability to successfully manage the GJLCO staff to meet the Update/Leave hiring goals. Furthermore, stated S1, Complainant was terminated for his divisive leadership approach and his unprofessional conduct directed toward Regional Census Center (RCC) staff, including Regional Technicians (RT), Administrative Specialists (AS), and Partnership Specialists, who were assigned to help out Complainant's GJLCO.
Specifically, an identified AS1 stated that when she was sent to the GJLCO on February 17, 2010, to assist with processing new hire paperwork and fingerprints for approximately 940 employees that were to start training on February 22, 2010, she discovered the office had 600 fewer people hired than necessary for the operation. AS1 also indicated that Complainant however was unaware of this deficit and unaffected by the impact. AS1 further stated that Complainant was resistant and uncooperative in RCC staff's efforts to resolve the issue.
An identified RT indicated that Complainant submitted "D-150's" untimely; ex-communicated the RCC appointed Field RT in all office management meetings; and failed to follow directives as appropriated by his supervisors. The RT also stated that Complainant was verbally abusive and extremely unprofessional to him.
Another AS2 indicated that as of February 17, 2010, Complainant's office had less than 300 enumerators selected. AS2 stated that Complainant spent almost his entire day in his office with the door closed and no direction was given to his staff which had no idea how to select that many enumerators. AS2 indicated that if he and other RCC staff had not been there to assist, Complainant's GJLCO would have failed to meet its hiring goal due to a lack of leadership. AS2 stated that while he and other RCC staff were there from February 17 to 23, 2010, they were constantly approached by the assistant managers, supervisors, and clerks with questions about the Census operations. They needed guidance and were not receiving any from Complainant.
Complainant's second-level supervisor (S2) stated that after consultation with S1 and Denver Regional Director, he made the decision to terminate Complainant's employment. Specifically, S2 indicated that Complainant's GJLCO was in disarray, dysfunctional, behind in selecting and hiring a staff of over 900 persons, and not following the rules of hiring, setting up training classes for trainees, and running certificates correctly.
The Commission agrees with the AJ that Complainant failed to rebut the Agency's foregoing legitimate, nondiscriminatory reasons for terminating Complainant from his employment at the Agency. Upon review, we find that Complainant failed to show that he was treated less favorably than a similarly situated employee under similar circumstances. Based on the foregoing, we find that Complainant has failed to show that the Agency's action was motivated by discrimination as he alleged.
CONCLUSION
Accordingly, the Agency's final order 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 eviden0ce 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
10/4/12
__________________
Date
1 The record indicates that Complainant also alleged discrimination in reprisal which was previously dismissed by the Agency. Since Complainant did not raise this during his hearing, we find he abandoned such claim. The record also indicates that Complainant subsequently amended the complaint to add a claim of national origin discrimination during the hearing.
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0120122295
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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