[Redacted], Lionel A., 1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Jan 25, 2021

Appeal No. 2021001121 (E.E.O.C. Jan. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lionel A.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2021001121 Agency No. 63-2020-00011D DECISION On December 3, 2020, 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 16, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Census Field Manager, AD-0301-00, at the Agency’s Santa Rosa Area Census Office in Santa Rosa, California. On November 15, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), national origin (American), and reprisal for prior protected EEO activity when he was terminated, actually or constructively, on September 30, 2019.2 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 Complainant attested that he is also of Hispanic origin, but he does not speak Spanish. He did not indicate race as a basis on his formal complaint, but did so during the investigation. 2021001121 2 The Agency accepted the complaint and conducted an investigation, which produced the following pertinent facts: Regarding his alleged basis of reprisal, Complainant attested that he filed an EEO complaint in July 2019 and “the retaliation occurred as a result of the instant complaint.” Complainant attested that he interviewed for the position of Census Field Manager in February 2019. He attested that, during the interview, he was asked if he spoke Spanish and he and an interviewer, the Area Manager, laughed about the fact that Complainant’s last name was a Spanish surname, but he did not speak Spanish. Complainant attested that the vacancy announcement indicated that the position was initially a work from home position but, during the interview, they discussed whether he would be willing to drive to Oakland one day a week until the Santa Rosa Office opened. He attested that the vacancy announcement indicated that the required work travel was local and required 25% or less of the time. He attested that his commute from his home to the Oakland Office was 70.2 miles, each way. The Area Manager confirmed that she interviewed Complainant for the position and attested that she recommended him for hire. She attested that she believed Complainant could speak Spanish as she had heard him speak Spanish in the office. Complainant was hired as a temporary employee. He was employed at the Agency from April 28, 2019 until July 11, 2019, when he resigned. Once he was hired, the Agency flew Complainant to training in Los Angeles and Seattle. He attested that he worked in the Oakland Office on May 6, 2019, he worked from home on May 10, 2019, and, the following week, the Area Manager instructed him to report to the Oakland Office. He attested that he was told to leave his house at 8:00 am and return by 4:30 pm, to avoid overtime or compensatory time. He attested that, due to traffic, he arrived at the office at approximately 10:00 am and would leave by 2:30 pm, but he never returned home before 5:00 or 5:30 pm that week. He attested that, at the Agency’s direction, he continued to go to the Oakland Office, as required, with varying numbers of days per week. He attested that the Agency gave him 4 hours of compensatory time per day, but he was working and traveling more than 4 hours. He attested that, while he was compensated for his mileage, he did not get compensation for a hotel or a per diem. Complainant generally attested that, during this time, his spouse started a new job and, consequently, his child care requirements conflicted with his traveling to and from the Oakland Office, given the length of the commute. He generally attested that the Agency attempted to work with him to accommodate his child care responsibilities, but when he was out sick, he was still expected to come to the Oakland Office two days per week. 2021001121 3 He attested that, when he reported to work on July 5, 2019, after having been out sick, the Area Manager informed him that he must report to the Oakland Office every Monday and Tuesday until August 18, 2019, and the Area Census Office Manager stated that if he was unable to do that, they would need to start termination paperwork. Complainant attested that, following this, he made changes to his child care plan and reported to the Oakland Office on Mondays and Tuesdays as required. Complainant attested that, in early July 2019, he and his co-workers were to do “dry run trainings” of the training they would be providing to Field Supervisors. He attested that, on July 9, 2019, he reported to the Oakland office and the Area Manager ordered him to start training. He attested that, for 5 hours, he stood in front of the group and provided the training, with a 15-minute break and a 30-minute lunch. Complainant believed that he was singled out of a group of approximately 25 employees to do the training. Complainant also attested that, on July 10, 2019, he had a scheduled telework day. He attested that, 30 minutes into his day, the Census Field Manager informed him that the Area Manager had changed the plan for their day. He attested that they were under strict orders to complete a number of tasks by noon and the Area Manager issued another last-minute directive that had to be completed by 3 pm. Complainant attested that he was put under enormous stress by the Area Manger and had no option but to resign, given the extremely poor treatment. Complainant believed that he was discriminated against because the Area Manager knew he did not speak Spanish and thought he should have been able to speak Spanish because of his last name. He attested that there were several instances when the Area Manager and Complainant’s co- workers would have conversations in Spanish and he believed some of his co-workers thought he spoke Spanish by the way the Area Manger led the conversation, but he did not understand them. Complainant alleged that, ultimately, the Spanish-speaking employees were promoted, and he and several others were fired. The Area Manager attested that Complainant was not fired, but rather resigned in July 2019. She attested that Complainant was told during the interview process that he would be required to travel to the Oakland Office when the job required it, until the Santa Rosa Office opened. She attested that Complainant was given dates to report to the Oakland Office, but he had scheduling conflicts with his wife and was unable to report as needed because of childcare problems. She also attested that the Agency allowed Complainant to stay overnight at a hotel, so that he could be in the office 8 hours per day, but Complainant chose not to do that. She explained that, if an employee lives over 50 miles away, the employee is entitled to receive a hotel room, but it is the employee’s responsibility to book a hotel room and provide a receipt for reimbursement. The Area Manager denied singling Complainant out for any reason, attesting that every office was required to conduct a dry run of training. She did not recall selecting Complainant to demonstrate the training but indicated it would have made sense to choose him to ensure he was ready to conduct the training on his own because he was not in the office very often. 2021001121 4 She recalled speaking to the Census Field Manager and Area Census Office Manager about Complainant’s refusal to report to the Oakland Office, but she attested that she did not solicit his resignation, nor did she terminate any other employees while Complainant was employed at the Agency. She also did not recall any conversation with Complainant during his interview regarding whether he spoke Spanish. The Census Field Manager was Complainant’s first-line supervisor. He generally attested that, while he was initially instructed by the Area Manager that Complainant should work in the Oakland Office one day a week, this changed to two and then three times a week. He generally explained that the Area Manager revised Complainant’s schedule, understanding that these changes would cause Complainant difficulties. The Administrative Manager generally attested that she believed the Area Manager was unrealistic with respect to her expectations for Complainant’s schedule and commute. She generally attested that she heard others speak of how the Area Manager treated Complainant in a belittling and demeaning way. A Regional Technician attested that all the employees in training were required to stand up in front of the group and perform a “dry run” of the training, which took 5 hours at a minimum. Another Regional Technician provided his opinion that the Area Manager had problems with and/or supervising “white men.” At the conclusion of the investigation, 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). 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. The instant appeal followed. The Agency has not submitted a brief or statement in response to Complainant’s appeal. 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”). 2021001121 5 Complainant acknowledged that he resigned his position; thus, the issue is whether his resignation was a discriminatory constructive discharge. A discriminatory constructive discharge occurs when an Agency, motivated by discriminatory animus, creates working conditions that are so difficult, unpleasant, or intolerable that a reasonable person in Complainant's position would feel compelled to resign. Byron E. v. U.S. Postal Serv., EEOC Appeal No. 0120143037 (Sept. 1, 2016). The Commission has adopted a three-pronged test for establishing a constructive discharge. A complainant must show that: (1) a reasonable person in his position would have found the working conditions intolerable; (2) conduct which constituted prohibited discriminatory treatment created the intolerable working conditions; and (3) the complainant's involuntary resignation result from the intolerable working conditions. Ileana R. v. Dep’t. of Homeland Sec., EEOC Appeal No. 0120120394 (Nov. 24. 2015). However, even where actions which precipitate an individual's retirement are discriminatory or retaliatory, this does not automatically establish that the subsequent resignation or retirement constituted constructive discharge. Olsen v. Dep't of Def., EEOC Request No. 05A10104 (Mar. 22, 2001). Although Complainant alleged that the Agency treated him so harshly that he had no other option than to resign, we find that he has failed to establish a discriminatory constructive discharge. With respect to his allegations regarding his commute and work-related travel, we note that Complainant acknowledged that he had been informed during his interview that he would be required to commute to the Oakland Office occasionally and that the vacancy announcement indicated there would be some travel involved. We recognize that Complainant essentially argues that the commute was outside of local commuting distances, the travel was more often than he anticipated, and the schedule changes were frustrating, particularly as his child care needs increased with his wife’s acceptance of a new position. However, the Agency explained that Complainant had the option to stay in a hotel, with reimbursement for costs, but he declined to do so. The record also shows that the Agency attempted to accommodate Complainant’s child care challenges and commuting issues, but, ultimately, the Agency’s needs required him to be present in the Oakland Office for training, at least on some occasions. Regarding Complainant’s allegations regarding his being required to do a practice demonstration of the training, we note that the Area Manager explained that every office was required to conduct a dry run of the training and Complainant’s co-worker attested that all the employees in Complainant’s training group were required to perform a dry run of the training. With respect to Complainant’s general allegations that he experienced extremely poor treatment from the Area Manager, including changes in task assignments and strict orders under tight time restrictions, we find that these instances were disagreements between a supervisor and a subordinate about the appropriateness of assignments and workload and/or a personality conflict. We recognize that Complainant alleged that his inability to speak Spanish was discussed during the interview and that the Area Manager and others occasionally spoke Spanish in the workplace. However, even assuming this occurred, we do not find this would be sufficient to establish bias or discriminatory animus. 2021001121 6 Therefore, we find that Complainant has not established that a reasonable person in his position would have found these working conditions intolerable. We also find that he has not met his burden to establish that the Area Manager was motivated by a discriminatory animus towards creating such working conditions as would be so difficult, unpleasant, or intolerable that a reasonable person in Complainant's position would feel compelled to resign. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final 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. 2021001121 7 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). 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 25, 2021 Date