Complainant,v.Penny Pritzker, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Sep 13, 2013

0120120317 (E.E.O.C. Sep. 13, 2013)

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

,
Complainant,

v.

Penny Pritzker,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.

Appeal No. 0120120317

Hearing No. 510-2011-00121X

Agency No. 10-63-01502D

DECISION

Complainant filed an appeal from the Agency’s final order dated September 12, 2011, finding
no discrimination with regard to his complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

In his complaint, dated June 8, 2010, Complainant alleged discrimination in reprisal for prior
EEO activity when he was not hired for employment with the Agency. Upon completion of
the investigation of the complaint, Complainant requested a hearing before an EEOC
Administrative Judge (AJ). On August 12, 2011, 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
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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 claims involving allegations of unlawful employment discrimination, Complainant has the
burden of establishing a prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); Furnco Construction Co. v. Waters, 438 U.S. 567 (1978). This requires Complainant
to present a body of evidence from which, if not rebutted, the trier of fact could conclude that
unlawful discrimination did occur. Since each complaint of discrimination is unique, the facts
necessary to establish a prima facie case will vary. International Brotherhood of Teamsters v.
United States, 431 U.S. 324, 358 (1977); McDonnell Douglas Corp., 411 U.S. at fn 13. To
establish a prima facie case of reprisal, Complainant must establish that at the time of the
alleged violation (1) he had engaged in prior EEO activity; (2) the Agency was aware of his
participation in the protected activity; (3) the Agency took adverse action against him; and (4)
that there is a nexus between the protected activity and the Agency’s adverse action.
Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318 (D. Mass.
1976), aff’d, 545 F.2d 222 (1st Cir. 1976).

In this case, Complainant claimed that on October 23, 2009, Complainant took and passed a
qualifying examination for employment with the Agency. But, Complainant claimed that he
was not hired for employment. The AJ indicated that the Agency did not contest the fact that
Complainant filed an EEO complaint related to the 2000 Census. However, the AJ stated that
Complainant presented no evidence that the alleged non-hiring decision was made by Agency
personnel who knew of his prior EEO activity. Based on the foregoing, the AJ found and we
agree that Complainant failed to meet his burden of establishing a prima facie case of reprisal
discrimination. Thus, we find that Complainant was not discriminated against 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 evidence which tend to
establish that:

0120120317

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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
0120120317

4
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

September 13, 2013
Date