0120113411
10-27-2011
Robert M. Freeburg, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Robert M. Freeburg,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120113411
Hearing No. 550-2011-00062X
Agency No. 10-63-00459D
DECISION
Complainant filed an appeal from the Agency’s final order dated
June 7, 2011, finding no discrimination with regard to his complaint.
29 C.F.R. § 1614.405(a). For the following reasons, we AFFIRM the
Agency’s final order.
BACKGROUND
The record indicates that in his complaint, Complainant alleged
discrimination based on race (White), age (over 40), and in reprisal (for
negative newspaper and television publicity associated with an incident
involving the Agency’s hiring practices) when he was not selected for
employment in January 2010, and when he was terminated on May 3, 2009.
On March 16, 2010, the Agency accepted the January 2010 nonselection
issue for investigation, but dismissed the termination issue and
retaliation claim for failure to state a claim and due to untimely EEO
Counselor contact, pursuant to 29 C.F.R. §§ 1614.107(a)(1) and (2).
Complaint File (COM) at 47. Complainant does not contest the Agency’s
dismissal of his claims. Accordingly, we will not address such in this
decision since Complainant effectively abandoned the same.
Upon completion of the investigation of the January 2010 nonselection
claim, Complainant requested a hearing before an EEOC Administrative
Judge (AJ). The record indicates that on November 23, 2010, Complainant
submitted to AJ requesting his complaint be amended as whether he was
discriminated against based on race (White) and age (over 40) when the
Agency prejudiced his opportunity for future employment by postponing his
Enumerator training from April 1, 2009, until April 16, 2009. COM at 73.
On January 14, 2011, the AJ granted Complainant’s request to amend
his complaint to comprise this newly framed claim. COM at 91. On May
20, 2011, the AJ issued a decision without holding a hearing, finding
no discrimination. COM at 64. 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 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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that Complainant had established a
prima facie case of discrimination, the Agency articulated legitimate,
nondiscriminatory reasons for the alleged incident. In the instant
complaint, Complainant alleged that the Agency prejudiced his opportunity
for future employment by postponing his Enumerator training from April 1,
2009, until April 16, 2009. Specifically, Complainant claimed that he was
initially scheduled for Enumerator training on April 1, 2009, but he was
later informed that his training would be postponed until April 16, 2009.
Complainant stated that he underwent training on April 16, 2009, and
on April 28, 2009, the Agency hired him in a temporary excepted service
position that had no commitment of any future employment. The AJ noted
that on May 4, 2009, the Agency released Complainant for lack of work,
and on February 25, 2010, he was rehired. The Agency, then, extended
and/or converted Complainant’s appointment three times thereafter,
and released him for lack of work on July 12, 2010.
The Agency stated that during the relevant time period at issue, it
invited more applicants to the April 1, 2009 training sessions than
it could properly train, and thus, randomly rescheduled training many
applicants for later that month, i.e., April 16, 2009. COM at 129.
Specifically, the Agency indicated that they rescheduled the training
of several individuals at random and Complainant’s age and race were
not considered when his training session was rescheduled. Id. The AJ
noted that according to the Agency, almost all of the comparators cited
by Complainant who received the earlier April 1, 2009 training shared
his race and many were also senior citizens. AJ’s Decision at 6.
The Commission agrees with the AJ that Complainant failed to rebut
the Agency’s legitimate, nondiscriminatory reasons for the alleged
incidents. Based on the foregoing, we find that Complainant has failed
to show that the Agency’s action was motivated by discrimination 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:
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 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
10/27/11
__________________
Date
2
0120113411
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013