[Redacted], Gerald L., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Mar 27, 2023

Appeal No. 2022002289 (E.E.O.C. Mar. 27, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gerald L.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2022002289 Agency No. 63-2021-00462 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 22, 2022, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Technician, GS-0303-05, at the Agency’s Chicago Regional Office in Oak Brook, Illinois. On August 24, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on disability (diabetes and liver fibrosis) and in reprisal for prior protected EEO activity (requesting a reasonable accommodation) when he was terminated, effective July 28, 2021. Complainant does not challenge the framing of the complaint. 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. 2022002289 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. In its final decision, the Agency found that Complainant was an individual with a disability and that he was qualified within the meaning of the Rehabilitation Act. Assuming Complainant established a prima facie case of discrimination and retaliation, the Agency concluded that the Agency articulated legitimate, nondiscriminatory reasons that Complainant failed to rebut as pretextual. Complainant began his employment with the Agency on January 17, 2021, with a Competitive- Career Conditional Appointment, which required him to be a probationary employee for one year. He had previously worked for the Agency as an Administrative Manager (Excepted Service Appointment) during the decennial census. In a progress review dated June 15, 2021, the person listed as Complainant’s first-level supervisor stated that Complainant was not performing at the fully successful level 3 or above and listed areas for improvement, including becoming familiarized with the onboarding and payroll processes and timely completion of assignments. In three emails from June 2021, S3 (third level supervisor, Program Coordinator) emailed Complainant regarding some performance issues, including partial or missing pay for two employees in Complainant’s service area, the payroll processing for pay period 11 of that year, and the status of several new hires. S3 also issued Complainant a memorandum on June 17, 2021, titled “Failure to Follow Up on Payroll Issues,” outlining his performance deficiencies. Another of Complainant’s first-level supervisors (S1), Administrative Officer, stated in her affidavit that Complainant had errors and issues with his work that caused several people not to receive their pay on time, which resulted in new hires resigning. S1, who became Complainant’s supervisor in early July 2021, retrained the staff upon learning of these errors. S1 stated that even after retraining, Complainant “continued to have unresolved pay issues for the new hires he was responsible for.” S3 issued Complainant a termination letter on July 28, 2021, citing his unacceptable performance during his probationary period. The letter stated that he had failed to ensure timely onboarding of new hires and tracking them through the hiring process. In addition, the letter stated he failed to successfully process payroll in a timely matter. Another supervisor, Administrative Specialist (AS), said she supervised Complainant until his termination, though her affidavit indicated that she supervised and assigned Complainant tasks related to the Census Investigative Service Missing Documents Project as opposed to payroll/timekeeping. AS claims that she did not observe any unacceptable job performance issues concerning Complainant and that no such issues were brought to her attention regarding his involvement in the Missing Documents Project. 2022002289 3 AS averred that she believed Complainant was terminated based on his disabilities and for requesting a reasonable accommodation based on her observation of “tension between the Complainant and [S3] regarding his work schedule.” The Agency found that management’s legitimate, nondiscriminatory reasons for terminating Complainant during his probationary period were based on his performance issues in processing payroll and new hire onboarding, which he often failed to complete without errors or on time. In addressing the question of whether Complainant established pretext, the Agency noted AS’s affidavit, where she stated she did not observe any performance problems by Complainant while under her supervision. The Agency determined that AS only supervised one aspect of Complainant’s work, the Missing Documents Project, not timekeeping and processing of new hires. Because three of Complainant’s supervisors confirmed his deficiencies in those areas, the Agency found that AS’s statements did not cast doubt on the Agency’s explanation. The Agency also reasoned that there was no evidence that S3 voiced opposition to Complainant’s reasonable accommodation or his telework schedule, especially given that all of the Administrative Technicians she supervised teleworked two days per week for at least a portion of the period at issue. The Agency therefore concluded Complainant could not show management’s reasons were pretext for discrimination or reprisal, beyond Complainant’s subjective belief. 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. (Aug. 5, 2015) (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 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, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination or reprisal. The Agency terminated Complainant during his probationary period based on the fact that he had multiple documented performance errors regarding onboarding and timekeeping/payroll, resulting in employees missing pay, despite extra training. Even in light of AS’s affidavit, which does not speak directly to payroll/timekeeping or onboarding, we find that the record persuasively supports management’s explanation of Complainant’s performance deficiencies. Furthermore, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. We also note that Complainant does not dispute that he was granted a reasonable accommodation and that he was permitted to telework three days per week. 2022002289 4 Based on the foregoing, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination or retaliation as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2022002289 5 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 March 27, 2023 Date