Mervin D.,1 Complainant,v.Penny Pritzker, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Jan 24, 2017

0120150011 (E.E.O.C. Jan. 24, 2017)

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

Mervin D.,1
Complainant,

v.

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

Appeal No. 0120150011

Agency No. 63-2014-00059

DECISION

The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s September 15, 2014, final decision concerning his 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

At the time of events giving rise to this complaint, Complainant worked as a Field
Representative at the Agency’s Denver Regional Office in Denver, Colorado. On May 21,
2012, Complainant was given an excepted service appointment as a Field Representative. The
appointment was subject to a one-year trial period. On July 31, 2013, the Program Supervisor
advised Complainant that the Agency had found discrepancies in his work on the American
Housing Survey (AHS), and asked Complainant to provide a written explanation of what
occurred. Complainant responded on August 1, 2013. On September 24, 2013, the American
Community Survey (ACS) Supervisor advised Complainant that the Agency had discovered
discrepancies in his work on the ACS, and asked Complainant to provide a written explanation
for what occurred. Complainant responded on September 27, 2013. Management determined

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

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that Complainant failed to provide an adequate explanation for the discrepancies. As a result,
on January 10, 2014, Complainant’s third-level supervisor (S3) issued Complainant a letter
terminating his employment, effective January 17, 2014.

On March 19, 2014, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the basis of race/national origin (Hispanic and Navajo)2 when he
was terminated, effective January 17, 2014.3

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not
respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and found that management articulated legitimate, nondiscriminatory reasons for
its actions. Namely, S3 confirmed that Complainant was terminated for data falsification. S3
stated that data falsification cases are confirmed through an investigative process involving
personal re-interview and telephone call follow-up. S3 added that Complainant blamed the
discrepancies on his survey equipment not working properly; however, S3 stated that his
explanation was not believable. S3 explained that each survey instrument has a set of questions
where the Field Representative verifies that he is interviewing at the correct address, and each
Field Representative is trained on how to use the instrument to verify address locations.
Further, Complainant claimed that he entered the wrong answers and wrong names for one
case. S3 affirmed that each survey instrument provides multiple opportunities for the Field
Representative to verify the household roster. S3 stated that Complainant falsified data on
AHS and the ACS cases, and that in several of these cases, the respondents indicated that they
did not complete the interview. S3 noted that the Agency verified these falsification cases by
conducting personal visit re-interviews with the respondents. S3 described the situation as a
“severe case of data falsification based on the significant number of cases involved and the fact
that falsification occurred on multiple surveys.”

2 Complainant initially indicated in his formal complaint that he believed he was discriminated
against based on his race (Mexican). In his investigative affidavit, Complainant stated that his
race is “Hispanic and Navajo.” The Commission notes that it considers the term “Hispanic”
to denote a national origin. In any event, the analysis for a claim of national origin
discrimination is the same as the analysis for a claim of race discrimination.

3 Complainant indicated in his formal complaint that he believed he was subjected to reprisal
because he had “been terminated.” Complainant reported to the EEO Counselor that he
believed he was retaliated against based on his tattoos and his father working at the Agency.
The Agency dismissed Complainant’s reprisal claim because Complainant had not identified
any prior protected activity. As Complainant has not challenged this dismissal on appeal, the
Commission will not address it further in this decision.
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The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he was singled out and wrongfully terminated. Further,
Complainant argues that he should have received lesser punishment for the alleged
falsification, including a performance improvement plan or re-training. Complainant
challenges the falsification charges and asserts that he did his work to the best of his abilities.
Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

Upon review of the record, and assuming Complainant established a prima facie case of
discrimination on the alleged bases, the Commission finds that the Agency articulated
legitimate and nondiscriminatory reasons for its actions. Specifically, S3 affirmed that
Complainant was terminated for data falsification on a significant number of cases. ROI, Ex.
11, at 1. The record shows that management discovered multiple discrepancies in
Complainant’s work. ROI, Ex. 16, at 3-12. Management investigated the discrepancies
through re-interviewing the respondents and placing follow-up telephone calls. ROI, Ex. 11,
at 1. The investigative process confirmed that Complainant had falsified data. Id. S3
maintained that Complainant failed to provide an acceptable explanation for the alleged
discrepancies. Id. at 2. Therefore, management concluded that Complainant had engaged in
severe data falsification based on the significant number of cases involved and the fact that
falsification occurred on multiple surveys. Id. As result, S3 issued Complainant a notice
terminating his employment on January 10, 2014, effective January 17, 2014. ROI, Ex. 16, at
18.
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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.

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. The
Commission finds no persuasive evidence that Complainant’s protected classes were a factor 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 discriminatory animus was a factor in its actions. Complainant failed to carry
this burden. As a result, the Commission finds that Complainant has not established that he
was subjected to discrimination as alleged.

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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
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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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

January 24, 2017
Date