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

Equal Employment Opportunity Commission

Feb 21, 2013

0120121122 (E.E.O.C. Feb. 21, 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. 0120121122

Agency No. 10-63-00589D

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated November 22,
2011, finding no discrimination. For the following reasons, we AFFIRM the Agency’s final
decision.

BACKGROUND

In his complaint, Complainant, a former Recruiting Assistant with Beaver Falls Local Census
Office, Philadelphia Regional Census Center, alleged discrimination based on age (over 40)
and disability (congestive heart failure) when he was terminated on February 6, 2010. After
completion of the investigation of the complaint, Complainant did not request a hearing. The
Agency thus issued its final Agency decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which Complainant failed to rebut.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “review the
documents, statements, and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s own assessment of the
record and its interpretation of the law”).
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After a review of the record, assuming arguendo that Complainant had established a prima
facie case of discrimination, we find that the Agency has articulated legitimate,
nondiscriminatory reasons for the alleged incident. The Agency stated that on December 16,
2009, Complainant received a temporary excepted service appointment, not to exceed February
16, 2010, as a Recruiting Assistant (RA). The Agency noted that Complainant attended
training on December 16 and 17, 2009. On December 21, 2009, he was scheduled to attend a
testing session with another RA, but he became ill and went to the hospital. In his complaint,
Complainant indicated that after his release from his doctor, he came back to work on
December 28, 2009, and worked December 29, and 30, 2009. On December 31, 2009,
Complainant visited his doctor and was advised that he was suffering from congestive heart
failure. Then, on January 4, 2010, Complainant’s brother delivered his doctor’s note to his
supervisor indicting that he would be off work for four weeks or more. On January 5, 2010,
Complainant sent a note to his supervisor requesting that he remain on “unpaid sick leave”
until he was able to return.

Complainant’s manager indicated that she terminated Complainant effective February 6, 2010,
during his temporary excepted service appointment because since the foregoing January 2010
contacts, he had not contacted his supervisors about his status. The manager also noted that no
intermittent Decennial employee, including Complainant, was allowed to use sick leave.
Furthermore, the Local Census Office staffing authorization for RAs did not allow the carrying
of RA, such as Complainant, until he was able to work due to the aggressive goals and short
timeframe set for the recruiting operations. The manager also stated that Complainant was
terminated because his work performance was deficient.

It is noted that we do not address in this decision whether Complainant is a qualified individual
with a disability. Also, we note that Complainant has not claimed that he was denied a
reasonable accommodation. Even if Complainant is alleging he was denied a reasonable
accommodation, he has not shown that the Agency’s reliance on his poor performance (during
the few days he worked) as a reason for terminating him was a pretext for discrimination. 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 decision to terminate him was motivated by discrimination as
he alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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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.

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
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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