Wendy D. Walker, Complainant,v.Dr. Rebecca Blank, Acting Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Feb 21, 2013

0120121276 (E.E.O.C. Feb. 21, 2013)

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

Wendy D. Walker,
Complainant,

v.

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

Appeal No. 0120121276

Hearing No. 550-2011-00419X

Agency No. 10-63-02749D

DECISION

Complainant filed an appeal from the Agency’s final order dated January 10, 2012, finding no
discrimination with regard to her complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

In her complaint, Complainant, a former Enumerator with the Idaho Falls Local Census
Office, Seattle Regional Census Center, alleged discrimination based on sex (female), age
(over 40), and in reprisal for prior EEO activity when: her supervisor withheld work from her
and demanded her resignation; her Field Operations Supervisor demanded access to her home;
an unidentified male threatened her with police arrest; and management terminated her on May
28, 2010. Upon completion of the investigation of the complaint, Complainant requested a
hearing before an EEOC Administrative Judge (AJ). On December 21, 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
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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.

In the instant case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The Agency stated that management decided to terminate
Complainant during her temporary appointment because she failed to attend several mandatory
daily meetings with her supervisor and failed to turn in all of her completed assignments as
required. The supervisor denied she demanded Complainant to resign. Instead, during their
conversation, she merely asked Complainant to resign if she was not able to find the time to do
her Census work in addition to her full time job with another employer.

The supervisor also indicated that she withheld work from Complainant until she turned in her
pending assignments. The supervisor stated that Complainant had an uncompleted binder
which she refused to turn in despite several requests made by her and her superior. Thus,
Complainant’s third level supervisor had to call Complainant and explain the seriousness of the
situation. It apparently was during this conversation that Complainant alleges she was
threatened with arrest if she did not return government documents to the Agency. The
supervisor indicated that Complainant then finally returned the binder to the Agency.

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, including the
termination. We find that Complainant failed to show that she 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 she alleged.

CONCLUSION

Accordingly, the Agency’s final order is AFFIRMED.
0120121276

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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.

0120121276

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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