Bertie J.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Jun 22, 2018

0120162013 (E.E.O.C. Jun. 22, 2018)

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

Bertie J.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.

Appeal No. 0120162013
Hearing Nos. 531-2012-00371X, 531-2012-00383X
Agency Nos. 11-63-00129, 63-2012-01744

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403, from the Agency’s May 2, 2016 final order
concerning her 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. and Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The
Commission AFFIRMS the Agency’s decision finding no discrimination.

BACKGROUND

At the time of events giving rise to these complaints, Complainant was employed by the Agency
as a Survey Statistician, GS-1530-09, at its Telephone Center Coordination Office, National
Processing Center, Suitland, Maryland. On January 11, 2011, Complainant filed her complaint,
Agency No. 11-63-00129, alleging discrimination based on race (Native American/European),
religion (Muslim and perceived Muslim), and national origin (Kosovar Albanian/Alaskan
Native) when she was subjected to harassment in that:

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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1. On January 11, 2011, her supervisor (S1)2 made several comments to her that she
considered to be discriminatory.
2. After January 11, 2011, S1 periodically reminded her that a termination letter was
forthcoming and would be a “final and definite solution” to her employment.
3. On January 25, 2011, she found newspaper classified ads on her desk.

Complainant also alleged, in addition to the bases outlined above, discrimination in reprisal for
prior EEO activity when:

4. On February 4, 2011, S1 made several comments to her that she considered to be
discriminatory.
5. On March 1, 2011, S1 gave her an “unfair” progress review.
6. On March 1, 2011, she received a notice of proposed removal.

On January 5, 2012, Complainant filed her complaint, Agency No. 63-2012-01744, alleging
discrimination based on her race, national origin, religion, in reprisal for prior EEO activity, and
disability (tonsillitis and depression/anxiety/post-traumatic stress disorder) when:

7. S1 gave her a “harsh” mid-term rating.
8. On November 7, 2011, S1 gave her a “difficult time” by asking her why her work was
wrong and questioned her abilities to understand math and simple budget concepts.
9. On December 2, 2011, S1 “abruptly” went over to her desk and “demanded” that she
perform an assignment, and made several comments that she considered to be
discriminatory.
10. She was denied a career ladder promotion to GS-11.
11. S1 increased scrutiny of her work.
12. S1 spoke to her in a “harsher tone of voice.”
13. S1 gave her a harsh final performance evaluation rating.
14. S1 delayed or ignored her requests for helpful feedback and has not given them “serious
consideration.”
15. The Agency failed to provide her with a reasonable accommodation.

After its investigation into the complaints, the Agency provided Complainant with a copy of the
report of investigation and notice of right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision
without a hearing. The AJ subsequently issued a decision by summary judgement in favor of the
Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to
prove discrimination as alleged. The instant appeal followed.

2 The record indicates that S1 subsequently retired from her position at the Agency on March 31,
2012.
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ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to grant summary judgement when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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 rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based
on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

In order to successfully oppose a decision by summary judgement, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence, and must further establish that such facts are material under applicable law. Such a
dispute would indicate that a hearing is necessary to produce evidence to support a finding that
the agency was motivated by discriminatory animus. Here, however, Complainant has failed to
establish such a dispute. Even construing any inferences raised by the undisputed facts in favor
of Complainant, a reasonable fact-finder could not find in Complainant’s favor.

Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’
arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the
evidence did not establish that Complainant was discriminated against by the Agency as alleged.

CONCLUSION

Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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.
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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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request 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 received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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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

June 22, 2018
Date