Complainant,v.Dr. Rebecca Blank, Acting Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Mar 26, 2013

0120121207 (E.E.O.C. Mar. 26, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Dr. Rebecca Blank,
Acting Secretary,
Department of Commerce
(Bureau of the Census),
Agency.

Appeal No. 0120121207

Agency Nos. 2010-63-00481; 2011-63-00123

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
December 12, 2011 final Agency decision (FAD) 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. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
FAD.

BACKGROUND

Complainant was a Human Resources Specialist from May 11, 2009 to January 15, 2010, in
the Employee Relations Branch at the Census Bureau’s Headquarters in Suitland, Maryland.
Complainant was terminated from employment in January 2010. Complainant initiated EEO
counselor contact on February 3, 2010 (Agency No. 2010-63-00481). Complainant alleged
during EEO counseling that she was discriminated against based on her race (African-
American) and sex (female) when she was terminated after being accused of inappropriate
interaction with people and for going to the Office of Special Counsel with a whistleblower
complaint.

On February 20, 2010, Complainant sent an email to the EEO Specialist stating that she no
longer wished to pursue her discrimination claim. On February 22, 2010, the EEO Office sent
Complainant a letter acknowledging that Complainant wished to withdraw her informal
complaint. The letter informed Complainant of her right to file an EEO complaint and to be
protected from harassment or reprisal for initiating EEO counseling. The letter included
copies of a withdrawal form and a Notice of Right to File a Formal Complaint, in the event
Complainant decided to not withdraw her informal complaint. Additionally, the letter
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informed Complainant that she had 15 days from the receipt of the letter to file a complaint
should she decide to not withdraw her informal complaint. Complainant neither withdrew her
complaint nor filed a formal complaint.

In January 2011, the Agency posted external and internal vacancy announcements for two
vacant Human Resources Specialist positions in Employee Relations. Complainant applied
under the external vacancy announcement. The Agency reviewed the applications and
generated the Certificates of Eligibles. The external Certificate of Eligibles was comprised of
only veterans’ preference-eligible applicants because the number of preference-eligible
applicants equaled the number of vacancies available. Complainant was not preference-eligible
and did not make the Certificate of Eligibles for referral to the selecting official. In February
2011, Complainant learned that she was not selected for the position.

On February 4, 2011, Complainant again initiated contact with the Agency’s EEO Office. On
April 3, 2011, Complainant filed a formal complaint (Agency No. 2011-63-00123) alleging
that the Agency discriminated against her on the bases of race (African-American) and in
reprisal for prior protected EEO activity when she was not selected. In June 2011,
Complainant requested to amend her complaint to include her termination. The Agency
determined that this was really an attempt to revive an abandoned claim (Agency No. 2010-63-
00481) and dismissed it pursuant to 29 C.F.R. 1614.107(a)(2) for untimely filing of a formal
complaint. At the conclusion of the investigation, the Agency provided Complainant with a
copy of the report of investigation (ROI) and notice of her right to request a hearing before an
EEOC Administrative Judge. In accordance with her request, the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant had established a prima facie
case of discrimination and reprisal and found that management articulated legitimate,
nondiscriminatory reasons for Complainant’s non-selection. Specifically, the selecting official
(SO) stated that Complainant was found to be qualified, but she did not make the external
Certificate of Eligibles. SO confirmed that there were two vacant Employee Relations Branch
positions and it was Agency practice to only refer enough individuals to fill the vacancies. In
this case, the number of veterans’ preference-eligible candidates was sufficient to fill the
number of vacant positions. As a result, the two veterans’ preference-eligible candidates were
referred for consideration on the external Certificate of Eligibles. Ultimately, no one was
selected from the external Certificate of Eligibles. Instead, the Agency made a selection from
the internal Merit Certificate, which was open to federal employees and others eligible with
reinstatement rights.

In attempting to establish that the Agency’s reasons were pretextual, Complainant challenged
the Agency’s assertion that she did not score high enough for referral. The Agency determined
that the record clearly established that Complainant did not make the Certificate of Eligibles
because of the addition of points for veterans’ preference for two applicants. The Agency
concluded that Complainant had presented no evidence that management’s reasons for its
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actions were pretext for unlawful discrimination or reprisal. As a result, the Agency found
that Complainant had not been discriminated or retaliated against as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that she did not receive EEO counseling as to her termination
claim. Further, she explains that she did not respond to the Agency’s Notice of Right to File a
Formal Complaint because she had already filed with the Merit Systems Protection Board. As
to her non-selection claim, Complainant claims that the Agency has given conflicting reasons
as to why she was not selected. Accordingly, Complainant requests that the Commission
reverse the FAD.

ANALYSIS AND FINDINGS

The Agency’s Dismissal of Termination Claim

The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency
shall dismiss a complaint which fails to comply with the applicable time limits contained in 29
C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within 15 days of
receiving the notice of the right to do so.

The record contains an EEO Informal Complaint Contact Sheet showing that Complainant
initiated EEO Counselor contact on February 3, 2010. On February 19, 2011, Complainant
emailed the Agency’s EEO Office officials stating “I have given this a lot of thought and I
have decided not to pursue any claim for discrimination, I am moving on with my life, and I
will leave my accusers to God.” On February 20, 2011, Complainant again emailed the EEO
Office and reiterated “Let me make this clear: I've decided not to challenge my termination as
discriminatory, I am moving on with my life.” In response, the EEO Office sent Complainant
a letter informing her of her rights and included a withdrawal form and a Notice of Right to
File a Formal Complaint.

The record establishes that Complainant received the Notice of Right to File on March 1,
2011, by certified mail. Although the notice indicated that Complainant had to file a formal
complaint within 15 calendar days of its receipt, Complainant failed to file her formal
complaint. Complainant has not offered adequate justification to warrant an extension of the
time limit for filing the formal complaint. Accordingly, the Agency’s dismissal of this claim
was proper.

Disparate Treatment (Non-selection)

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an
0120121207

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inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 531) U.S. 133.143 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981).

In the instant case, the Commission finds that the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, Complainant was found qualified for
the position, but did not make the external Certificate of Eligibles and was not referred for
consideration. ROI, Ex. 9, at 2. Agency policy allowed management to refer only preference-
eligible applicants when the number of such applicants exceeded or equaled the number of
vacancies. ROI, Ex. 10, at 2. For this position, the number of veterans’ preference-eligible
applicants was sufficient to fill the position; therefore, two veterans’ preference-eligible
candidates were referred for consideration on the Certificate of Eligibles. ROI, Ex. 9, at 2.
Ultimately, no selection was made from the external Certificate, and an applicant was selected
from the internal Certificate. ROI, Ex. 10, at 2.

Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged
discriminatory events, Complainant now bears the burden of establishing that the Agency's
stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC
Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the
Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. at 256.

The Commission finds that the record is devoid of any evidence that Complainant's protected
classes were factors in any of the Agency’s actions. At all times, the ultimate burden remains
with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons
were not the real reasons and that the Agency acted on the basis of discriminatory or
retaliatory animus. Complainant has failed to carry this burden. As Complainant chose not to
request a hearing, the Commission does not have the benefit of an Administrative Judge's
credibility determinations after a hearing; therefore, the Commission can only evaluate the
facts based on the weight of the evidence presented. As a result, the Commission finds that
Complainant has not established that she was subjected to unlawful discrimination or reprisal.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

0120121207

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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 (Nov. 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.

0120121207

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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

March 26, 2013
Date