Complainant,v.Penny Pritzker, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Jan 15, 2014

0120122830 (E.E.O.C. Jan. 15, 2014)

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

,
Complainant,

v.

Penny Pritzker,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.

Appeal No. 0120122830

Hearing No. 550-2011-0496X

Agency No. 10-63-02418D

DECISION
Complainant filed an appeal from the Agency’s final order dated May 4, 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 alleged discrimination based on sex (female), age (over 40),
disability (artificial heart valve), and in reprisal for her prior EEO activity when on May 14,
2010, management terminated her from employment.1

Upon completion of the investigation of
the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ).
On April 19, 2012, 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

1 We note that although the Agency initially dismissed Complainant’s reprisal claim, it
subsequently accepted and included the reprisal claim during a hearing.
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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 established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged termination. The AJ noted that on April 23, 2010, Complainant began
working as a temporary Decennial Census Enumerator at the Phoenix Northeast Local Census
Office in Maricopa, Arizona. The AJ stated that following her first week of training,
Complainant reported a total of 80 hours worked for her first two weeks in the field and 1.25
hours of work on the weekend. Specifically, Complainant’s supervisor stated that during the
relevant time period, Complainant reported as she was working exactly 8 and 10 hours
workdays, whereas Enumerators’ work, by its very nature, was very irregular and did not lend
itself to exact 8 or 10 hours workdays on a regular basis as she reported. The supervisor also
stated that she never approved Complainant additional work hours in excess of 8 hours per day
pursuant to the Agency policy. The supervisor noted that Complainant acknowledged that she
also worked more than 40 hours per week but did not report the extra time. The supervisor
indicated that Complainant reported her start time as early as 7:30 a.m. on several days,
whereas, Enumerators were expected to refrain from disturbing residents until 9 a.m.
Complainant also reported all but 1.25 hours of the 80 hours of work she claimed was
performed during the weekdays, whereas, most Enumerators completed the bulk of their field
enumeration on the weekends when most residents were at home. The supervisor further
indicated that Complainant reported 43 miles of travel on May 12, 2010, for compensation,
which appeared suspicious since it usually required 15 miles travel to and from the facility.
Based on the foregoing and after consulting with her superior, the supervisor stated that she
decided to terminate Complainant on May 14, 2010, on the grounds that the number of
completed cases that she submitted did not justify the number of hours worked.

After a review of the record, the AJ properly determined that despite Complainant’s
contentions, she failed to demonstrate that the Agency’s articulated reasons for her termination
were pretexual. It is noted that we do not address in this decision whether Complainant is a
qualified individual with a disability. In the instant case, we note that Complainant has not
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claimed that she was denied a reasonable accommodation. Based on the foregoing, we find
that Complainant failed to show that the Agency’s action was 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).
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”
0120122830

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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

Date
January 15, 2014