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

Equal Employment Opportunity Commission

May 25, 2022

Appeal No. 2020004712 (E.E.O.C. May. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nigel S.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2020004712 Agency No. 63-2019-00305 DECISION 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 29, 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. At the time of events giving rise to this complaint, Complainant was within his one-year trial period for his position as a Survey Statistician at the Agency’s Associate Directorate for Demographic Programs and American Community Survey Office in Suitland, Maryland. Report of Investigation (ROI) at Exhibit 24. On August 8, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), sex (male), and color (Black) when he was subjected to harassment and forced to resign. Examples of the alleged harassment include being asked, “how much you going to pay me?” in a “Black voice”; being asked to provide a writing sample; and being informed that he was “too confident” and needed to learn from others. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). 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. 2020004712 2 When the Agency did not receive a copy of Complainant’s request for a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that Complainant did not establish that the Agency subjected him to unlawful harassment, and that the evidence reflected personality conflicts because Complainant had difficulty getting along with his supervisors and colleagues, and he disagreed with how he was managed. The Agency noted that there were two incidents that could have been related to race, when a coworker at the gym asked Complainant, “is this the workout you do in the hood?” and stated that Complainant probably did not know who Aretha Franklin was; and when Complainant was repeatedly asked for identification at an elevator. However, the Agency determined that they were isolated incidents that were not severe or pervasive enough to support a finding of a hostile work environment. Regarding the constructive discharge claim, Complainant asserted that he resigned in lieu of termination to avoid the negative and abusive culture the Agency perpetuated by not properly addressing overt and covert discriminatory behavior, but the Agency found that a reasonable person in Complainant’s situation would not have found his working conditions intolerable. The Agency stated that Complainant had difficulties in two different work environments that were, at least in part, caused by him, but they were not severe enough to be intolerable. For example, Complainant alleged that an Agency official ignored him, but she explained that Complainant sent her unsolicited feedback, to which she did not have time to respond. Further, the Agency determined that Complainant’s involuntary resignation resulted from the legitimate threat of termination due to misconduct, as opposed to intolerable working conditions. The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. 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 Chap. 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”). On appeal, Complainant asserts that he elected a hearing before an EEOC AJ, but none was appointed. With his appeal, Complainant provided copies of emails he sent to his representative showing that, on April 3, 2020, Complainant informed his representative that he intended to elect a hearing, and on April 15, 2020, Complainant stated that he mailed “both copies” of his hearing request. 2020004712 3 However, Complainant provided no evidence to prove that he mailed his hearing request to the Commission or the Agency. Further, we note that Complainant did not specify how or when he mailed his hearing request. Complainant’s evidence also shows that the Chief, Program and Implementation of the Agency’s Office of Civil Rights (Chief) emailed Complainant on May 11, 2020, to ask if Complainant would request a hearing or a final decision, and Complainant did not respond to the email until August 25, 2020, which was after the Agency issued the final decision. In response to Complainant’s appeal, the Chief averred that the Agency did not receive any notice of Complainant’s hearing request, and as such, it issued a final decision on July 29, 2020. A review of the Commission’s records does not show any hearing request by Complainant. We find that Complainant is not entitled to a hearing because he failed to provide evidence that he made a timely request for a hearing to the Agency or the Commission. See Owen v. U.S. Postal Serv., EEOC Appeal No. 01A14329 (Oct. 28, 2002). As such, we decline to grant Complainant’s request to vacate the Agency’s final decision. We note that Complainant did not challenge the findings in the Agency’s final decision and upon careful review of the Agency’s decision and the evidence of record, we find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish that the Agency subjected him to discrimination or harassment as alleged. Accordingly, 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). 2020004712 4 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). 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. 2020004712 5 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 May 25, 2022 Date