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

Equal Employment Opportunity Commission

Jan 8, 2020

2019000272 (E.E.O.C. Jan. 8, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jon M.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2019000272 Agency No. 63-2017-00263 DECISION On October 12, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 6, 2018 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant was an applicant for a Field Representative position at the Agency’s Philadelphia Regional Office in Philadelphia, Pennsylvania. On October 30, 2017, Complainant filed a formal EEO complaint alleging the Agency discriminated against him based on his disability when a June 19, 2017 written offer of an Excepted Service, Schedule A2 appointment as a Field Representative, GS-0303-04 (not-to- exceed October 31, 2017), with the U.S. Census Bureau’s Philadelphia Regional Office was rescinded on August 16, 2017. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and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. 2 Schedule A hiring authority is a non-competitive appointment authority for applicants with disabilities. 2019000272 2 After the investigation of the claim, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision on July 6, 2018, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The evidence developed during the investigation into Complainant’s complaint reflects that on January 1, 2017, the Philadelphia Regional Office issued Recruiting Bulletin Number 23-17-001 for Field Representatives in Kentucky, Ohio, Maryland, Delaware, Pennsylvania, Tennessee, Virginia, West Virginia, and the District of Columbia. The positions were “mixed tours” which provided for periods of full-time, part-time, and intermittent employment to accommodate the Agency’s workload. The Recruiting Bulletin stated that all applicants must pass a background check and must complete an OF-306 “Declaration for Federal Employment” (“OF0-306”) to determine their suitability for Federal employment. 2019000272 3 Applicants were advised that any false or misleading statements in their applications may result in not being hired, or having employment terminated after being hired. Complainant submitted his application for a Field Representative position. On June 19, 2017, the Agency sent Complainant a letter offering him an Excepted Service Schedule A appointment as a Field Representative, GG-0303-04, with a “not to exceed” date of October 30, 2017. Complainant identified his disability as learning disability. For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability. Complainant was instructed to complete forms related to the background check and to return them by June 30, 2017. The Agency acknowledged the receipt of Complainant’s forms on June 30, 2017. In his application and OF-306 dated July 7, 2017, Complainant answered “yes” to the question which asks if he has been delinquent on an obligation owed to the federal government. Complainant reported $15,000 in student loans that were in “deferment.” Complainant answered “no” to all the questions regarding prior arrests and convictions. In the July-August 2017 period, Complainant had intermittent telephone and email contacts with two Personnel Security Specialists regarding documentation and information related to his background investigation. One of the two Personnel Security Specialist took over Complainant’s case because the other specialist was scheduled for leave. On August 7, 2017, Complainant sent an email to the Chief, Human Resources, Program Manager, and the Supervisor of Personnel Security expressing his concerns that his background investigation was being conducted in a discriminatory manner. Specifically, Complainant asserted that the Personnel Security Specialist had continued to press him for proof of satisfaction of debts revealed on his credit report. Complainant further claimed that he had provided the requested information and that the Personnel Security Specialist had assured him that everything was in order. On August 9, 2017, the Personnel Security Specialist, who was acting for the Chief, Human Resources, acknowledged Complainant’s email and noted she would look into the matter. Shortly thereafter, Complainant sent another email to the Personnel Security Specialist, Chief, Human Resources, and other Agency officials reiterating his concerns about the handling of his clearance and expressing frustration of the delay. On August 16, 2017, the Agency notified Complainant that his employment was terminated due to the unfavorable disposition of his background investigation. Agency management articulated legitimate, non-discriminatory reasons for terminating Complainant. The Chief, Human Resources stated that during the relevant period, Complainant was not hired as he had claimed. Instead, Complainant was provided a contingent offer of employment, pending a background check. The Chief, Human Resources noted that during the investigation, “there were issues that arose during the investigation involving debt and an arrest. 2019000272 4 Complainant was asked for supplemental information to mitigate this derogatory information but the information he provided in response to the findings did not adequately mitigate CIS adjudicator concerns according to policies and procedures.” Subsequently, Complainant was found unsuited for employment with the Agency. The Chief asserted that Complainant’s disability was not a factor in the Agency’s determination. Rather, it was the unfavorable information uncovered during the background investigation. She stated that Complainant “did not appropriately mitigate the findings of his background check; there were specific inconsistencies, based on the information Complainant provided, and his pre- employment documentation.” The record contains a copy of an email to Complainant dated August 16, 2017 from the Census Investigative Service (“CIS”) office/Human Resources in which stated, “as part of the hiring process, employment sources, education sources, and criminal record sources were checked to verify the specific information you indicated on your employment forms. Our review of those pre-employment sources raised a serious question about your current suitability. Based on the nature of the facts disclosed and the lack of significant mitigating information provided, our determination is unfavorable and your employment with the Census Bureau has been denied.” With respect to Complainant’s debt, the CIS learned that that the District Court of Virginia dismissed his case and held him liable for the debt. The CIS also learned that Complainant was arrested for an unauthorized use of a family member’s car and was found guilty of obstructing justice by making a false statement to law enforcement. The new information was inconsistent with the information which Complainant initially provided. After careful consideration of the record, we conclude that neither during the investigation nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the rescission of his job offer were a pretext for unlawful discrimination. There is simply no evidence to suggest that Complainant’s disability played any role in the decision at issue. In fact, Complainant initially received the contingent offer of employment because of his disability as Schedule A eligible candidate. There is no evidence that the information uncovered during the background investigation relating to his financial debt and an arrest were in any way related to Complainant’s disability. CONCLUSION Therefore, after a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2019000272 5 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). 2019000272 6 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 (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 January 8, 2020 Date