0520130328
09-06-2013
Barbara Thomiszer, Complainant, v. Penny Pritzker, Secretary, Department of Commerce (Bureau of the Census), Agency.
Barbara Thomiszer,
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Request No. 0520130328
Appeal No. 0120120985
Hearing No. 550-2011-00208X
Agency No. 10-63-00971D
DENIAL
Complainant timely requested reconsideration of the decision in Barbara Thomiszer v. Department of Commerce, EEOC Appeal No. 0120120985 (February 7, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In the underlying case, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (Caucasian) when, in 2010, she was accused of data falsification, denied a training opportunity, angrily yelled at, and ultimately terminated from her position as the Assistant to the Assistant Manager for Field Operations with the Waianae Local Census Office in Hawaii.
The appellate decision affirmed the Agency's final order, which implemented an EEOC Administrative Judge's decision without a hearing finding no discrimination. Specifically, the appellate decision found that Complainant failed to show that the following legitimate, nondiscriminatory reasons articulated by the Agency were pretextual: (1) Complainant's request for Decennial Applicant, Personnel, and Payroll System (DAPPS) training was denied because her position did not require her to access DAPPS information; and (2) Complainant was terminated because she inaccurately reported census data compiled through field canvassing operations. Moreover, the appellate decision found that Complainant failed to establish a claim of harassment because Complainant did not show that the employee who inappropriately yelled at her on one occasion did so because of her race. The appellate decision determined that the employee's reason for yelling at Complainant was because of the latter's performance shortcomings, the employee was known to be rude and unprofessional to others regardless of their race, and the employee was later terminated due to her serial acts of misconduct involving interpersonal conflicts with others in the office.
In her request for reconsideration, Complainant argued that the appellate decision clearly erred in finding no discrimination. Specifically, Complainant asserted that, despite testifying otherwise, management never told her that she had performance problems and never attempted to correct her performance prior to her termination. In addition, Complainant asserted that management knew she was not the source of the incorrect data because a co-worker testified that management had terminated "an outer island employee" for falsifying data. Further, Complainant asserted that the employee who yelled at her was motivated by race because that employee did not similarly yell at a non-Caucasian employee after learning that the non-Caucasian employee was responsible for the work delay. Moreover, Complainant asserted that management continuously terminated Caucasian employees and only replaced those employees with Native Hawaiian/Pacific Islander employees. Finally, Complainant cited her co-worker's testimony "that whites in that office were discriminated against with respect to who was hired and fired."
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Specifically, Complainant failed to show that the appellate decision clearly erred in finding no race discrimination.
Regarding Complainant's termination, the record supports the appellate decision's finding that management's reason for terminating her - the inaccurate reporting of census data compiled through field canvassing operations - was not a pretext for race discrimination. Specifically, the record reflects that Complainant's responsibilities included submitting such reports and that the Waianae office had significant problems in March 2010 with erroneous data reporting. In addition, while Complainant's co-worker testified that "[i]t was [her] impression that whites in [the Waianae] office were discriminated against with respect to who was hired and fired," we find that the co-worker's mere impression is insufficient to prove that Complainant's termination was discriminatory. Finally, the record reflects that the 2010 terminations in the Waianae office included numerous Caucasian and non-Caucasian employees.
Regarding Complainant being yelled at by an employee, the record supports the appellate decision's finding that the conduct at issue was not based on Complainant's race. Specifically, the record reflects that the employee was terminated in June 2010 for "unprofessional behavior and disturbance" towards other employees, including a non-Caucasian employee. In addition, we note that the record contains no evidence that the employee used a racial slur.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120120985 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
__9/6/13________________
Date
2
0520130328
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520130328