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

Equal Employment Opportunity Commission

Mar 23, 2022

Appeal No. 2020004652 (E.E.O.C. Mar. 23, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Luigi B.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2020004652 Agency No. 63-2019-00423D DECISION On August 21, 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 July 22, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Temporary Enumerator/Lister at the Agency’s Field Division facility in Kansas City, Missouri. Complainant began his employment on July 27, 2019 and was terminated effective August 20, 2019. Complainant’s third-level supervisor (Geographer) stated that he was made aware by the Acting Area Field Manager that a female employee (Employee 1) claimed that Complainant sexually harassed her. Report of Investigation (ROI) at 50. In addition, a second female employee (Employee 2) complained about Complainant sexually harassing her as well. Id. Based on statements and pictures of text messages provided by Employees 1 and 2, Geographer made the decision to terminate Complainant. Id. 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 2020004652 On October 3, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (physical osteoarthritis of the hip) and reprisal for requesting a reasonable accommodation under Section 501 of the Rehabilitation Act of 1973 when, on August 20, 2019, Complainant was terminated. The Agency accepted the complaint for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) 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 (FAD) pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant asserts that the Agency’s decision was against the “manifest weight” of the evidence and that he proved his case by clear and convincing evidence. Among other things, Complainant asserts that he was discouraged from requesting a reasonable accommodation and was asked why Complainant needed to request reasonable accommodation when his disability was obvious. Complainant also denies engaging in misconduct involving alleged sexual harassment toward Employees 1 and 2 which resulted in his termination. Complainant states that the Commission should conclude that Complainant’s termination was based on retaliation, and that any findings to the contrary by the Agency are inconsistent with the “preponderance of the facts.” Complainant requests that the Commission overturn the FAD and find in his favor. The Agency did not submit an Appeal Statement. STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 3 2020004652 For Complainant to prevail, he or she must first establish a prima facie case 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. 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. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, the Agency terminated Complainant effective August 24, 2019. ROI at 67. Regarding the Agency’s legitimate, nondiscriminatory reason for its actions, the Agency asserted that Complainant had engaged in misconduct. Included in the administrative file is an August 27, 2019, email from Acting Area Field Manager to Geographer regarding Complainant’s behavior. Geographer averred that he was notified that Employee 1 made a claim of sexual harassment against Complainant. Employee 1 had complained that during a training class, Complainant kept putting his hand on her shoulder and when she stepped away to remove his hand, he continued to move forward and kept trying to put his hand on her shoulder. ROI at 53, 57, and 70. She also reported that Complainant made inappropriate and suggestive comments that made her feel uncomfortable. ROI at 53, 70. Geographer stated he received pictures of some text messages Complainant sent to Employee 1, which he felt were inappropriate. For example, “When r u supposed to tease me next?” “I got paid if u need any.” ROI at 74-5. Employee 2 also complained that Complainant made her feel extremely uncomfortable during Complainant’s orientation training class when Complainant repeatedly tried to derail the class and tried to get Employee 2 to come over to him. ROI at 72. She also reported that Complainant’s aggressive conduct made her feel extremely uncomfortable and that she felt the need to block Complainant after his repeated calls. ROI at 60-1, and 72. Employee 2 asserted that she felt unnerved by Complainant’s repeated calls, and that Complainant was yelling on a call he made to her, asking her to become his supervisor. ROI at 56, 60, 72. Geographer stated that based on this information, he recommended Complainant be terminated. Upon review, we find that the Agency has proffered a legitimate, non-discriminatory reason for Complainant’s termination. We next turn to Complainant to show pretext. 4 2020004652 Besides generally denying the alleged misconduct, Complainant presented no evidence to refute the claims of misconduct. Complainant argued that his termination was based on his reasonable accommodation request. ROI at 57, 69, 72-3. On or about August 3, 2019, Complainant verbally requested reasonable accommodation. He submitted medical documentation regarding his request on August 20, 2019. ROI at 69. The next day, Complainant was told that he was terminated based on complaints from Employees 1 and 2. Complainant also asserted that the Agency manufactured performance deficiencies. The Commission has long held that, where a Complainant is a probationary employee, he or she is subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. See Zachary K. v. Dep’t of the Interior, EEOC Appeal No. 0120107097 (Mar. 26, 2019). Here, Complainant has presented no evidence to show that his termination was based on any protected category. Therefore, Complainant’s claims fail. 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 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, 5 2020004652 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). 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. 6 2020004652 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 March 23, 2022 Date