[Redacted], Bryan T., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022001737 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bryan T.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2022001737 Hearing No. 530-2021-00153X Agency No. 63-2020-00413-D DECISION On February 9, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 22, 2021 final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Field Supervisor, AD-0303-06, at the Agency’s Baltimore Area Census Office (ACO) in Baltimore, Maryland. On April 20, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (African- American/multi-racial), national origin (African-American), sex (male), religion (Church of the 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. 2022001737 2 Anointed), color (medium complexion), disability (physical and mental), and in reprisal for prior protected EEO activity when: 1. On undisclosed dates, the Census Field Manager instructed Complainant to attend a number of meetings, but the Census Field Manager failed to show up; 2. Complainant was forced to lie about his home address of record on his first day of training; and 3. On February 21, 2020, Complainant was terminated from his position without warning. Complainant contended that he experiences complications from several conditions including, nerve damage on his left side from his hip to his ankle and trauma to his right knee; anxiety; post traumatic stress disorder (PTSD); flashbacks; and other conditions. Complainant stated that his physical impairment and walking with a cane caused a mental impact. The pertinent record shows Complainant was a temporary, excepted service appointed Census Field Supervisor for the Baltimore Area Census Office. Complainant was hired on February 3, 2020, although he stated that he had previously worked with the Agency. He named three individuals as responsible for the alleged discrimination: the Census Field Manager, who was his supervisor (African-American, male, American, disability, religion not specified) (Supervisor); the Lead Census Field Manager (Caucasian, female, American, no stated disability or prior EEO, Atheist) (Supervisor 2); and the Administrative Manager (Caucasian, female, American, no disability, religion not specified) (Supervisor 3). On his first day of training, he was informed that he had to put his miles traveled on his time sheet. Report of Investigation (ROI) at Exhibit 9, at 6. The Agency required its employees to live within the districts for which they were collecting data. Complainant continued to provide his friend’s address, instead of his own in order to maintain employment. ROI at 81-82. His actual address was associated with a religious institution. He contends he was forced to lie about his actual address, which put him at odds with his religious beliefs. Management officials denied telling Complainant to lie about his address. He claimed that his Supervisor did not believe that African-Americans deserved the job of supervisor, even though the Supervisor was also African-American and was well regarded. ROI at 86. Complainant averred that he believed his Supervisor, who is of the same race, nevertheless held animosity toward African-Americans, and that other African-Americans had disappeared from the payroll. Complainant alleged that his Supervisor instructed him to attend meetings, but the Supervisor failed to arrive or did not arrive on time. Due to the nature of his Supervisor’s position, the Supervisor often travels to various locations in order to coordinate meetings with the Field Supervisor. Complainant acknowledged that when his Supervisor was absent, another management official arrived at the location to sign his timesheet. ROI, Ex. 6 at 9. 2022001737 3 The record also shows his Supervisor orally counseled him regarding his attendance and following instructions. ROI at Exhibit 15, at 1. In addition, Complainant claimed he was not given the proper tools or equipment, but he did not specify which tools were not provided and whether others outside of his protected groups were accorded better treatment. On February 18, 2020, Complainant was instructed to return to the ACO to be issued other devices and additional trainings. Complainant did not return to the ACO. On February 20, 2020, Complainant was given specific instructions to contact the Census Field Manager with an update on his ability to handle his caseload. Complainant failed to contact the Census Field Manager. Supervisor 3 affirmed that Complainant was terminated for repeatedly not showing up for meetings and conference calls, not providing notification in advance that he would be unable to attend, and for his failure to follow instructions despite a previous counseling for the same offense. ROI at Exhibit 14, at 1. In addition, it was undisputed that he continued to provide the address of a friend, instead of his own, in order to maintain employment. The record shows the Agency had terminated a female employee who also lived outside the appropriate district. ROI at 177. Complainant acknowledged that he had not provided management with any medical documentation of his medical conditions. He also had not raised harassment concerns with management. Complainant’s affidavit, ROI at p. 70. Supervisor 3 was not aware of any prior EEO activity. ROI at 172. At the conclusion of the investigation2, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case issued a summary judgment decision in favor of the Agency. In the decision, the AJ determined that Agency management had articulated legitimate, nondiscriminatory reasons for its actions. The AJ reasoned that Complainant “provided nothing more than his own statements of belief and speculation that discrimination occurred,” and “this is insufficient to prove discrimination under the law.” The AJ further concluded that Complainant had not demonstrated that the Agency’s legitimate, nondiscriminatory reason for its actions were pretext to hide discriminatory animus. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. This appeal followed. 2 The Supervisor did not participate in the investigation as he was no longer employed by the Agency. 2022001737 4 CONTENTIONS ON APPEAL On appeal, Complainant maintains that the AJ erred because there was evidence that needed to be submitted and evidence the AJ did not consider in her decision. Complainant argues that there were witnesses who would have provided a statement of facts, including employees who are no longer employed with the Agency. In addition, Complainant argues that he needed more time to present his case, especially during the COVID-19 state of emergency. Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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 rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Agency officials articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Complainant continued to provide his friend’s address instead of his own in order to maintain employment; that meeting schedules often changed due to the nature of the job; and Complainant was terminated because of his failure to follow instructions despite a previous counseling for the same offense. Although Complainant believed he should have been provided more notice, that does not refute the Agency’s stated reasons for terminating him. Furthermore, the conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the Agency was entitled to summary judgment, because the evidence did not establish a genuine dispute of material fact warranting a hearing. 2022001737 5 Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2022001737 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 26, 2023 Date