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

Equal Employment Opportunity Commission

Jan 30, 2013

0120120792 (E.E.O.C. Jan. 30, 2013)

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

Complainant,

v.

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

Appeal No. 0120120792

Hearing No. 550-2011-00439X

Agency No. 10-63-02883D

DECISION

Complainant filed an appeal from the Agency’s final order dated November 7, 2011, finding
no discrimination with regard to her complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

In her complaint, dated August 23, 2010, Complainant, a former Enumerator, at the Bedford
Local Census Office (LCO) in Arlington, Texas, alleged discrimination based on sex (female)
when she did not receive an equitable amount of work assignments. Upon completion of the
investigation of the complaint, Complainant requested a hearing before an EEOC
Administrative Judge (AJ). On October 27, 2011, the AJ issued a decision without holding a
hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision.1

1 It is noted that on November 8, 2010, the Agency dismissed Complainant’s reprisal claim for
failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1) since its EEO tracking system
revealed she had no prior EEO activity. Specifically, Complainant claimed retaliation at issue
for filing a police report for two purported physical assaults against her by a non-employee,
which was not within the purview of EEO regulations. Furthermore, since Complainant did
not raise this dismissal during the hearing, we find she abandoned the subject claim from
further processing.
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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.

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 AJ noted that on April 27, 2010, Complainant was hired
as an Enumerator which was a temporary position and was subjected to an existing workload
of the LCO. The record indicates that Complainant held that position until July 8, 2010.
Complainant claimed that after she reported that she was assaulted by a resident, she was
terminated on June 5, 2010, but she was then called back again on June 11, 2010, to work only
25 hours within a two-week period.

Complainant’s supervisor indicated that initially, he distributed work among his crews equally.
Later as work dwindled down, the supervisor stated, he distributed work so it could be
completed in an efficient manner. The supervisor stated that Complainant was not very
efficient in that she always worked 40 hours a week while others would get the same amount of
work done in half the time. The supervisor indicated that only a few of his crews ever worked
a full 40 hours a week because they got their work done in much less time than that.
Complainant acknowledged that she was told on June 5, 2010, that her work performance was
not efficient enough compare to others. On June 5, 2010, stated the supervisor, he ran out of
work and he, thus, collected Complainant’s badge and satchel as he did with everyone else.
The supervisor indicated that no one was terminated at that time and they were told that they
would be called back if he was given more work.

The supervisor stated that on June 11, 2010, Complainant was asked to come back because he
had more work and he knew that Complainant needed work. On June 16, 2010, the supervisor
released Complainant for lack of work and only retained his top six performers to stay on in
0120120792

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order to close up the operation. The supervisor stated that Complainant was not one of his top
six performers. In July 2010, all the remaining Enumerators were terminated since they had
completed all Decennial operations.

Upon review, we agree with the AJ that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reasons for the alleged actions. Furthermore, 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.

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).

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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

January 30, 2013
Date