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

Equal Employment Opportunity Commission

Feb 7, 2013

0120121092 (E.E.O.C. Feb. 7, 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. 0120121092

Agency No. 10-63-02402D

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated December 6,
2011, finding no discrimination. For the following reasons, we AFFIRM the Agency’s final
decision.

BACKGROUND

In her complaint, dated July 16, 2010, Complainant, a former Clerk with the Brooklyn
Northeast Local Census Office, alleged discrimination based on race/color (Black), religion
(Christian), and sex (female) when her second level supervisor referred to her as “girl” on
several occasions; required her to work on Sunday despite knowing that she attended church on
Sunday; and, terminated her on June 8, 2010. After completion of the investigation of the
complaint, Complainant requested a final Agency decision without a hearing. 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

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “review the
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documents, statements, and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s own assessment of the
record and its interpretation of the law”).

After a review of the record, assuming arguendo that Complainant had established a prima
facie case of discrimination, we find that the Agency has articulated legitimate,
nondiscriminatory reasons for the alleged incidents. The Agency noted that Complainant was
appointed to a temporary excepted service, as a Clerk, on March 17, 2010, not to exceed May
17, 2010. On May 17, 2010, her appointment was extended until July 17, 2010. The Agency
stated that Complainant was terminated on June 8, 2010, due to her poor performance on a
number of occasions. Specifically, the record indicates that in May and June, 2010,
Complainant was counseled for her unauthorized absence and tardiness, falsification of her
time sheet, and violation of security regulations by discussing an employee’s information found
in Decennial Applicant, Personnel, and Payroll System (DAPPS) with other employees.

Complainant stated that her manager continually referred to her as “girl.” While we do not
condone the use of such a sexist term, we find that Complainant failed to show a causal
connection between her sex and her termination. Further, there is no evidence of record that
Complainant requested not to be assigned to work on Sundays to attend church. After a review
of the record, we find that Complainant failed to show that she 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 actions were motivated by
discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final decision 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.
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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
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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

February 7, 2013
Date