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

Equal Employment Opportunity Commission

Feb 21, 2013

0120121457 (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. 0120121457

Agency No. 11-63-00010D

DECISION

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

BACKGROUND

In his complaint, dated November 6, 2010, Complainant, a former Enumerator in the Local
Census Office, Asheboro, North Carolina, alleged discrimination based on sex (male) and age
(over 40) when he was not selected as a Crew Leader and was terminated on May 29, 2010.
After completion of the investigation of the complaint, Complainant did not request a hearing.
The Agency issued its final decision concluding that it asserted legitimate, nondiscriminatory
reasons for its actions, 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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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
incidents. Complainant was not selected for the crew leader position and the selectee was a
younger female. The Assistant Manager of Field Operations (AMFO) stated that during the
relevant time period at issue, there were ten individuals, including Complainant, who were
invited to Crew Leader training. The AMFO stated that she selected the selectee based on her
performance during training and tests. The AMFO noted that Complainant was not
recommended because he did not follow directives, acted independently, was not thorough with
paperwork, and approached the media on his own accord.

With regard to termination, Complainant’s supervisors stated that during the relevant time
period at issue, Complainant took photographs of houses assigned to him and developed them
at a local photo store and showed them to his coworkers. Complainant does not dispute this.
The supervisors reviewed the photographs and referred the incident to the Local Census Office
Manager who referred it to Area Manager. The Area Manager found that Complainant’s
actions violated the Agency’s strict confidentiality policies and instructed the supervisors to
terminate Complainant. Pursuant to this instruction, stated the AMFO, Complainant was
terminated on May 29, 2010.

We find that Complainant failed to show that management’s reasons for its actions were pretext
for discrimination as he alleged. Furthermore, we find that Complainant failed to show that he
was treated less favorably than a similarly situated employee under similar circumstances. We
also find that Complainant failed to show that his qualifications for the position were plainly
superior to the selectee’s qualifications or that the Agency’s actions were motivated by
discrimination. See Wasser v. Department of Labor, EEOC Request No. 05940058
(November 2, 1995). 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 decision 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.
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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 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
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
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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