Dallas T.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Nov 20, 2018

0120170486 (E.E.O.C. Nov. 20, 2018)

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

Dallas T.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.

Appeal No. 0120170486

Agency No. 63-2015-00257

DECISION

On November 10, 2016, Complainant filed a timely appeal with the Equal Employment
Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s October 11, 2016 final decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the reasons which
follow, the Commission AFFIRMS the Agency’s decision.

ISSUE PRESENTED

Has Complainant shown by a preponderance of the evidence that the Agency subjected him to
unlawful harassment, including an unacceptable performance rating and termination?

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Field Supervisor at
the Agency’s Philadelphia Regional Office, U.S. Census Bureau in Philadelphia, Pennsylvania.
Complainant began working for the Agency on January 24, 2015, and was terminated on
December 22, 2015.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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On November 6, 2015, Complainant filed an EEO complaint, later amended, alleging that the
Agency discriminated against him on the bases of race (Black), age (60), and reprisal for protected
EEO activity when:

1. In April 2015, he was threatened with an adverse personnel action;

2. On May 11, 2015, he received an unfavorable fiscal year 2015 mid-year review;

3. He was treated disrespectfully when, for example, on August 19, 2015, he was notified
that a Field Representative had been selected and would be reporting to him without
his prior knowledge or involvement in the hiring/selection process;

4. On November 13, 2015, he received an unacceptable performance review rating of 135
out of 500 points with negative comments;

5. On December 28, 2015, he was informed that his access to the Census’ network was
disabled; and

6. He was terminated from federal service, effective December 22, 2015.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.2

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. (Aug. 5, 2015) (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”).

Complainant has alleged that he was disparately treated. Therefore, his claims will be analyzed
under a three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by
demonstrating that he was subjected to an adverse employment action under circumstances that

2 Complainant did not submit a timely brief. The Agency submitted its opposition to the appeal.
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would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576
(1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason
for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). The prima
facie case is dispensed with where the Agency has articulated reasons for its actions for which
Complainant must show pretext. To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993).

Complainant has also alleged that he was subjected to unlawful harassment. A harassment claim
is examined under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
See also Enforcement Guidance on Harris v. Forklift Systems. Inc., EEOC Notice No. 915.002
(Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) he is a
member of a statutorily protected class; (2) he was subjected to unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on the protected
class; (4) the harassment had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there
is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal
No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11.

Upon review, we find that the Agency did not subject Complainant to disparate treatment, unlawful
discrimination or discriminatory harassment as alleged. The record does not support the
conclusion that it was discriminatory animus that motivated the Agency in its alleged actions.

With respect to claim 1, Complainant alleged that his supervisor threatened to write him up. The
record discloses that the alleged threat was made by the supervisor because he refused to certify
an employee’s time who did not report to him. Complainant’s supervisor denied threatening
Complainant. She explained that occasionally a Field Supervisor had to certify time and
attendance records for an employee not within his work group because the other Field Supervisor
had already completed his payroll and the employee had missed their submission deadline. This
request would only be requested when management was certain that the employee had worked the
submitted hours. Complainant’s supervisor informed him that she had verified the employee’s
time and advised Complainant that he could make a note in the payroll submission regarding his
approval. Complainant himself missed deadlines and other management had to approve for him.

Regarding claim 2, Complainant stated that the mid-year review was an attempt to slander him
and create a false record as grounds for adverse personnel action to be taken against him.
Complainant received the mid-year evaluation because he was performing below standards. His
supervisor addressed Complainant’s areas of weakness and suggested ways for him to improve his
performance and had counseled him repeatedly. She also pointed out his inappropriate conduct
toward staff, co-workers, and management.

Complainant alleges that he was treated with disrespect (claim 3). The example which he provided
was that he was not included in the selection process of a new Field Representative for his team.
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Record evidence discloses that Complainant was informed of the vacancy on his team when he
was hired and that interviews were being interviewed. Complainant’s supervisor stated that Field
Supervisors did not typically interview Field Representatives. In addition, Complainant was new
to the position of a Field Supervisor and he was not yet trained for the position.

Claims 4 and 6 are allegations concerning Complainant’s performance evaluation and termination.
His performance review was based on his poor performance and not for any discriminatory reason.
Complainant failed in almost all critical elements of his performance standards. Complainant had
poor communication skills and there were numerous complaints about him yelling at his
subordinates. He was also difficult to work with. Complainant was found lacking in leadership
and in providing customer service. He had a poor working relationship with his team and with his
supervisors and was disrespectful. Complainant did not perform his administrative duties,
including meeting payroll time frames and completing surveys in a timely manner. Complainant’s
unacceptable performance was the reason for his termination.

Regarding claim 5, being denied access to the Census’ network, the record reveals that he was
denied access because he was terminated. The Federal Express package that Complainant declined
signing for contained his termination notice. Had he signed for its delivery, he would have been
aware that he was being terminated and therefore would no longer have access to accounts in the
Census’ network.

In sum, we find that Complainant failed to show by a preponderance of the evidence that he was
subjected to a hostile work environment, treated disparately, or discriminated against on any basis.
We have examined all of the circumstances, including the frequency of the alleged discriminatory
conduct, its severity, whether it was physically threatening or humiliating, whether it unreasonably
interfered with his work performance and whether the alleged harassment was by a supervisor.
Harris v. Forklift Systems, 510 U.S. at 23. Further, the Agency has articulated legitimate,
nondiscriminatory reasons for its actions for which Complainant has not shown to be pretext.
Pretext is more than an assertion or a belief by a complainant that he has been subjected to
discrimination. Belief, however genuine, does not constitute evidence of pretext. See Mroz v.
Dep't of Defense, EEOC Appeal No. 01A33187 (Jan. 23, 2004). Pretext means that the reason
offered by management is factually baseless, is not the actual motivation for the action, or is
insufficient to motivate the action. Tincher v. Wal-Mart Stores, Inc., 118 F.3d 1125, 1130 (7th
Cir. 1997); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). Absent proof of a
discriminatory motive, the Commission has consistently held that we will not second-guess an
employer’s decision. The complainant always carries the ultimate burden of persuading the trier
of fact that he has been the victim of intentional discrimination. Complainant has failed to carry
this burden.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or referenced herein, we AFFIRM the Agency’s finding of no
discrimination.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). 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.
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RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 20, 2018
Date