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

Equal Employment Opportunity Commission

Nov 8, 2021

Appeal No. 2020004329 (E.E.O.C. Nov. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Irene F.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2020004329 Agency No. 63-2019-00405D DECISION On July 26, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 14, 2020 final decision concerning her 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. Complainant applied for and was hired as a Partnership Specialist, GG-0301-11, at the Agency’s Regional Census Center in Philadelphia, Pennsylvania. On September 23, 2019, Complainant filed a formal EEO complaint in which she alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), and in reprisal for prior protected EEO activity when Complainant’s entry-on-duty (EOD) was delayed from August 5, 2019, to September 16, 2019, because her supervisor did not inform her until July 31, 2019, that she would be responsible for the cost of lodging for mandatory orientation training. Complainant further alleged that “minority females are directly impacted by the Agency’s policy of requiring unemployed persons to pay for lodging to attend mandated, government-sponsored training.” 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. 2020004329 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. On May 5, 2020, Complainant requested a final agency decision without a hearing. In accordance with Complainant’s request, the Agency issued its decision in which it concluded that Complainant failed prove that she was subjected to discrimination or reprisal as alleged. 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”). Disparate Impact To prevail on a disparate impact claim, Complainant must ultimately prove that an agency practice or policy, while neutral on its face, disproportionately impacted members of her protected classes, in this case women and African-Americans. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). She can do so by presenting statistical evidence sufficient to show that the practice in question has caused the exclusion. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988). To establish a prima facie case of disparate impact, she must: (1) identify the specific practice or practices challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the challenged practice or policy. The burden is on a complainant to show that “the facially neutral standard in question affects those individuals within the protected group in a significantly discriminatory pattern.” Dothard v. Rawlinson, 433 U.S. 321, 329 (1977). Here, Complainant identifies as a discriminatory practice what she characterizes as the Agency’s policy of requiring newly hired employees to pay lodging expenses incurred during mandatory training out-of-pocket. But according to the Partnership Coordinator and the Travel Team Lead, the new hires would be reimbursed for any training-related travel expenses that they might incur. IR, Ex 7, p. 2; Ex. 8, p. 2. In support of her disparate impact claim, Complainant submitted an article entitled “The Impact of Structural Racism in Employment and Wages on Minority Women’s Health” stating that minority females and particularly African American women have lower income than others in the United States. Complainant, however, has not presented any statistical evidence of an adverse impact the policy at issue has had on African-American women. The only statistical evidence in the record is the profile of the workforce that reports to the Partnership Coordinator. IR, Ex. 9. That evidence shows that the Partnership Coordinator supervised a staff of 113 employees, of which 71 were women and 31 were minority women. 2020004329 3 Thus, the record contains insufficient evidence to show that the practice identified had a disproportionate impact on minority and women employees. Without such evidence, Complainant is unable to show legally significant statistical disparities. Therefore, the Commission finds that Complainant failed to establish a prima facie case of disparate impact discrimination. Disparate Treatment We now turn to Complainant’s disparate treatment claim. To prevail, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Coro. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Partnership Coordinator articulated a legitimate and nondiscriminatory reason for informing Complainant that she had to cover her own travel costs. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). According to the Partnership Coordinator and the Travel Team Lead, it was the Agency’s normal practice to require newly hired employees assigned to training to pay their own travel expenses and be reimbursed after the training. IR, Ex. 7, p. 2; Ex. 8, p. 2. The Partnership Coordinator stated that he advised all new hires on July 31, 2019, of this requirement. Additionally, the Partnership Coordinator affirmed that when Complainant complained about the situation in an August 3, 2019 email, she specifically requested her start date to be pushed back. The Partnership Coordinator noted that since Complainant requested that her start date be moved, it became a matter for the Administrative Department to address pursuant to protocol. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Partnership Coordinator’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). Beyond her own assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents which contradict or undercut the explanations provided by the Partnership Coordinator and the Travel Team Lead, which cause us to question the truthfulness of these individuals as witnesses, or which otherwise tend to establish an inference of a discriminatory motive attributable to the Partnership Coordinator. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. And from that evidentiary record, we conclude that Complainant failed to demonstrate that she was subjected to discrimination or reprisal as alleged. 2020004329 4 After a review of the record in its entirety, including consideration of all statements submitted on appeal, 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. 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). 2020004329 5 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 November 8, 2021 Date