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

Equal Employment Opportunity Commission

Sep 4, 2014

0120131891 (E.E.O.C. Sep. 4, 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. 0120131891

Hearing No. 510-2011-00384X

Agency No. 10-63-01985D

DECISION
Complainant filed an appeal from an Agency’s final order dated March 11, 2013, finding no
discrimination with regard to her complaint. For the following reasons, we AFFIRM the
Agency’s final order finding of no discrimination.

BACKGROUND
In her complaint, Complainant alleged discrimination based on race (Black), sex (female),
national origin (American), and age (over 40) when on May 23, 2010, she was terminated
from her employment at the Agency. The record indicates that at the conclusion of the
investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ).
The AJ, after a hearing, issued a decision finding no discrimination, which was implemented
by the Agency in its final order.

ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
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An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999). Despite
Complainant’s contentions on appeal, we do not find any improper conduct on the part of the
AJ during hearing process.
In this 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 record indicates that on April 27, 2010, the Agency
appointed Complainant to the position of Enumerator at the Agency’s Alexandria Local Census
Office in Virginia. Management indicated that Complainant was terminated because she was
argumentative and disrespectful toward her supervisors. Complainant’s supervisor also stated
that Complainant’s performance was less than satisfactory; she did not follow the supervisor’s
instructions to work with or take direction from an identified Crew Leader Assistant; she had
incorrect/falsified an Enumerator Questionnaire (EQ), missing an entry in the record of
contact, and incorrect proxy interview; she failed or excessively delayed carrying out orders or
assignments; and she refused to listen and became argumentative with the supervisors. The AJ
found Complainant’s second level supervisor’s testimony credible that Complainant was
disrespectful and yelled at several management officials during her less than one month
employment at the Agency. The AJ found Complainant’s testimony evasive in attempting to
avoid numerous questions during the hearing.

Based on the foregoing, the AJ found and we agree that Complainant failed to show that she
was treated less favorably than a similarly situated employee under similar circumstances. The
AJ also found and we agree that Complainant failed to show by a preponderance of the
evidence that the Agency’s proffered reasons were pretextual. Upon review, we find that the
AJ’s factual findings of no discriminatory intent are supported by substantial evidence in the
record.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, the Agency’s final order finding of no discrimination is AFFIRMED because the
AJ’s decision is supported by substantial evidence.

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:

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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
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

Date
September 4, 2014