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

Equal Employment Opportunity Commission

Aug 28, 2019

2019003601 (E.E.O.C. Aug. 28, 2019)

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

Gerald L,1
Complainant,

v.

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

Appeal No. 2019003601

Agency No. 630-2019-00154

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated April 29, 2019, dismissing his formal
complaint of unlawful employment discrimination which Complainant had claimed was in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq.

BACKGROUND

During the period at issue, Complainant worked as a Supervisory Survey Manager at the Agency’s
regional office in New York, New York.

On March 12, 2019, Complainant initiated EEO Counselor contact. Informal efforts to resolve his
concerns were not successful.

On April 9, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to
unlawful retaliation when, on March 8, 2019, Complainant was terminated because his supervisor
thought that Complainant had deliberately excluded teams 77 and 78 from a Current Population
Survey (CPS) report.

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 April 17, 2019, the Agency requested further information from Complainant for clarification
for the express basis of discrimination. On April 25, 2019, Complainant responded to the Agency’s
request for information.

On April 29, 2019, the Agency issued the instant final decision, dismissing the formal complaint
pursuant to 29 C.F.R. 1614.107(a)(1). The Agency reasoned that Complainant failed to properly
state a claim of discrimination based on race, color, religion, sex, national origin, age, disabling
condition, genetic information, or in reprisal for a prior protected activity.

The instant appeal followed.

ANALYSIS AND FINDINGS

Upon review, the Commission finds the Agency properly dismissed Complainant’s complaint for
failure to state a claim under 29 C.F.R. § 1614.107(a)(1). Complainant did not raise a covered
basis. After Complainant filed his formal complaint the Agency afforded Complainant the
opportunity to clarify his formal complaint. The Agency’s April 17, 2019 correspondence made
the following request to Complainant:

Please explain the basis or bases of your complaint. [By “basis or
bases” I mean the reason or reasons the Agency took the complained
of actions such as race, color, sex, national origin, disability, age, or
retaliation for protected EEO activity.]

In his April 25, 2017 response, Complainant maintained he had been subjected to what he
described as reprisal discrimination. However, Complainant denied any prior protected EEO
activity beyond this present claim. According to Complainant, the reason his Agency employment
was wrongfully terminated was because his supervisor was “bitter” and “would burst into a rage
for no good cause.” In a narrative accompanying his formal complaint Complainant described this
supervisor as desperate, angry, disgruntled, and misguided. Complainant has not stated a viable
basis of reprisal under the EEO statutes, and has not addressed any other covered basis as well.

CONCLUSION

The Agency’s final decision dismissing the formal complaint is AFFIRMED for the reason
discussed above.

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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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

August 28, 2019
Date