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

Equal Employment Opportunity Commission

Jan 24, 2014

0120123124 (E.E.O.C. Jan. 24, 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. 0120123124

Hearing No. 550-2011-00399X

Agency No. 10-63-000495D

DECISION
Complainant filed an appeal from the Agency’s final order dated August 7, 2012, finding no
discrimination with regard to her complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND
The record indicates that Complainant, a former Crew Leader (CL), filed her formal
complaint, dated April 6, 2010, alleging discrimination in reprisal for whistle blowing when on
February 9, 2010, she was terminated from her CL position in the Agency’s Westminster
Local Census Office. On June 14, 2010, the Agency issued a final Agency decision dismissing
the complaint. Complainant appealed the decision, and on September 9, 2010, the
Commission, in EEOC Appeal No. 0120103097, affirmed the Agency’s dismissal of the
complaint for failure to state a claim on the grounds that whistle blowing is not a proper basis
under EEO laws. On September 15, 2010, the Agency, indicating that the June 14, 2010
decision was in error in part, issued a partial acceptance and dismissal letter. Therein, the
Agency accepted Complainant’s claim as to whether she was discriminated against based on
sex (female) when she was terminated on February 14, 2010.1

1 The record indicates that Complainant’s termination at issue was recommended/approved by
her supervisors on February 9, 2010, and was effective February 14, 2010.
The Agency dismissed
Complainant’s claim of alleged discrimination in reprisal for whistle blowing for failure to
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state a claim. The Agency later accepted Complainant’s alleged discrimination in reprisal for
prior EEO activity when it was informed of her prior EEO activity, i.e., her EEO Counselor
contact in August 2009, with regard to her prior termination and nonselection occurring in
April 2009. Upon completion of the investigation of the complaint, Complainant requested a
hearing before an EEOC Administrative Judge (AJ). On July 25, 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
Given that our prior decision involving this case did not consider sex discrimination and
retaliation for prior EEO activity, we will, under the instant unique circumstances, address the
merits of the claim.

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 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 during the relevant time period,
Complainant was a temporary CL, with not-to-exceed date of March 31, 2010. As a CL,
Complainant was responsible for appointing, training, and supervising up to 10 Enumerators
for their duties of data collection.

Complainant’s manager indicated that on January 29, 2010, Complainant sent an electronic
message to an identified CL trainee (T1), who was seeking a promotion to CL, and informed
T1 that another CL trainee (T2) was already selected as a CL for the Westminster office.
Complainant also discouraged T1 from seeking any employment with the Agency and advised
T1 to seek further information concerning T2’s employment status and provided T2’s phone
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number. As a result of this message, T1 contacted the Westminster office to seek additional
information regarding her nonselection. Subsequently, Complainant’s immediate supervisor
was notified of this incident, and, on February 1, 2010, he documented the incident in a D-
282, Documentation of Conduct and/or Performance Problem. Therein, the supervisor
indicated that Complainant interfered with the Agency’s selection process of CL trainees for
future operations. On February 3, 2010, the supervisor also verbally counseled Complainant
about the importance of confidentiality and not sharing information obtained while in the office
or in the field. Complainant does not dispute this.

A few days later, on February 7, 2010, Complainant sent an electronic message to the
supervisor indicating that she just communicated with a former Census employee (F1), a new
trainee, and shared the names of individuals who were in her CL training. Complainant also
indicated in the message that F1 was not terminated from his Census employment last year as
he was told; rather F1 had to quit his employment because he had a heart attack and triple
bypass surgery. Complainant does not dispute this. The supervisor documented the foregoing
incident in a D-282 form. The manager stated that based on the foregoing incidents, she
terminated Complainant due to her violation of confidentiality and PII (Personally Identifiable
Information).2

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

2 PII includes the name and address, name and Social Security number, or other information
that could be used to identify another person.
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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
0120123124

5
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 24, 2014