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

Equal Employment Opportunity Commission

Feb 21, 2013

0120121404 (E.E.O.C. Feb. 21, 2013)

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

Rostyslav Hrynkiv,
Complainant,

v.

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

Appeal No. 0120121404

Hearing No. 510-2011-00168X

Agency No. 10-63-01073D

DECISION

Complainant filed an appeal from the Agency’s final order dated January 3, 2012, finding no
discrimination with regard to his complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

In his complaint, dated April 24, 2010, Complainant alleged discrimination based on national
origin (citizenship status) and in reprisal for requesting his paycheck when he was denied a
day’s pay during training and on April 9, 2010, he was terminated from his position.
Complainant also claimed that he was discriminated against because he was Ukrainian.

On June 8, 2010, the Agency dismissed Complainant’s retaliation claim and the claim based on
his citizenship status (non-U.S. citizen) for failure to state a claim pursuant to 29 C.F.R.
§1614.107(a)(1). The Agency stated that Complainant did not have any prior EEO activity and
the basis of his citizenship status was not within the purview of the regulations. The Agency
accepted Complainant’s claim on the basis of national origin (Ukrainian). Upon completion of
the investigation of the accepted claims, i.e., the denial of a day’s pay and termination based
on his national origin (Ukrainian), Complainant requested a hearing before an EEOC
Administrative Judge (AJ).

On November 21, 2011, the AJ issued a decision without holding a hearing, finding no
discrimination regarding the alleged incidents on the basis of national origin. In her decision,
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the AJ noted that Complainant waived his claims based on citizenship and retaliation because
he failed to timely object to the dismissal of those claims. Furthermore, the AJ stated that
citizenship was not protected under the regulations. 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. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

Initially, we find that the Agency properly dismissed Complainant’s retaliation claim pursuant
to 29 C.F.R. § 1614.107(a)(1) since there was no evidence that he engaged in prior EEO
activity. We also find that the Agency properly dismissed Complainant’s claim on the basis of
his citizenship for failure to state a claim.

Turning to the claims on the basis of national origin (Ukrainian), assuming arguendo that
Complainant had established a prima facie case of discrimination, the AJ determined that the
Agency articulated legitimate, nondiscriminatory reasons for the alleged incidents. Regarding
the day’s pay, the AJ stated that Complainant’s pay requests for 5.25 hours for March 16,
2010, were sent to the Agency’s payroll offices for payment. Complainant acknowledged that
management helped him to contact the payroll offices so he can get paid for that 5.25 hours.
He also admitted that “there was too much misunderstanding because of the temporary nature
of the Census process.” The Agency indicated that Complainant was timely paid for all his
work hours from March 18 to April 8, 2010, and he should have been paid for the March 16,
2010 training. The AJ determined that despite administrative error for the day’s pay being
delayed or being processed at this time, there was no evidence that the incident was based on
Complainant’s national origin.

0120121404

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With regard to termination, the AJ noted that on March 16, 2010, Complainant was hired as a
Questionnaire Assistance Center Representative with the Chicago North Local Census Office
(LCO), Illinois, not to exceed May 16, 2010. Soon after, the Agency realized that the Chicago
LCO had failed to follow proper procedures in the hiring of two non-U.S. citizens, including
Complainant. Specifically, the Agency stated that its policy required that it hire only U.S.
citizens unless special language or cultural skills were needed and qualified citizens were not
available among the applicant pool in its database. However, the Chicago LCO failed to
ensure that no U.S. citizen met the necessary language requirements and failed to seek prior
approval from the Regional Census Center (RCC) for Complainant’s appointment. Once the
Agency realized its administrative error, the Chicago LCO was directed to immediately
terminate Complainant, and another non-U.S. citizen employee. As a result, Complainant was
terminated from his temporary appointment on April 9, 2010. The AJ noted that management
in the Chicago LCO unsuccessfully tried to keep Complainant employed despite its initial
mistakes.

After a review of the record, we agree with the AJ that Complainant failed to rebut the
Agency’s legitimate, nondiscriminatory reasons for the alleged incidents. Furthermore, we
find that Complainant failed to show that he 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 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,
0120121404

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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

February 21, 2013
Date