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

Equal Employment Opportunity Commission

Mar 31, 2022

Appeal No. 2021004768 (E.E.O.C. Mar. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rich P.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2021004768 Hearing No. 540-2018-00198X Agency No. 63-2017-00254 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 23, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant worked as a Lead Telephone Interviewer, GS-0303-5 at the Agency’s Tucson Contact Center in Tucson, Arizona. On October 15, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to harassment and discrimination on the bases of race (Caucasian), national origin (Jewish), sex (male), religion (Jewish), disability (loss of sight in one eye), and in reprisal for prior protected EEO activity when: 1. On August 22, 2017, at approximately 12:00 p.m. he was verbally counseled for sleeping on duty by his second-level Supervisor (S2), the Supervisory Statistical Assistant. Despite denying that he was sleeping, S2 was not interested in hearing his 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. 2021004768 2 refutation and responded “harshly” by directing him to write the Branch Chief. At approximately 1:30 p.m. that day, he asked S2 for a copy of his phone activity for the day in order to uncover the truth, but S2 denied the request; 2. On August 28, 2017, he was counseled by his first-line supervisor (S1), the Supervisory Operations Specialist, for wasting time between cases, even though his “call attempts per log-in hour are above facility averages;” 3. On September 20, 2017, at approximately 8:30 a.m., the Lead Supervisory Telephone Interviewer asked to speak to him in the feedback room, and questioned him about overusing the Cisco “clerical not ready code (#4)” even though his production (i.e. attempts per hour) is above facility average; 4. On September 20, 2017, at approximately 9:15 a.m., S1 sat down next to him at his workstation and began scrutinizing his work as he was dialing; 5. On March 21, 2017, Complainant was given a verbal counseling by Supervisory Telephone Interviewer (STI 1) for having “open food on the production floor” (an unpeeled banana). Whereas, supervisors are seen with open food containers and eating on the production floor without repercussion; and 6. On September 14 [year unknown], Complainant received a verbal counseling by a Supervisory Telephone Interviewer (STI 2) for “not signing in on the sign in sheets downstairs.” Whereas, an ITT employee and S2 were observed not signing in on the sign-in sheets without repercussions. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. In the decision, the AJ determined Complainant had not offered evidence that the Agency’s asserted legitimate, nondiscriminatory reasons for the events Complainant challenged were pretext for discrimination on any of the asserted bases. The alleged incidents consisted of common workplace tensions and the result of supervisory actions that were based on legitimate, non-discriminatory reasons. For example, regarding claim (1), an Information Technology Specialist reported observing Complainant sleeping at his workstation for several minutes. Complainant confirmed that his eyes were closed, but denied sleeping. S2 told Complainant that someone reported that he was sleeping and if he was, he needed to be awake and set a better example. As to claim (2), S1 reviewed her 11 employees’ activity sheets and had one-on-one meetings with each one to discuss her observations. S1 stressed that Complainant was not singled out. With respect to claims (3) and (4), the Branch Chief directed supervisors to speak with Complainant and two other interviewers to discuss their excessive use of “not ready” time 2021004768 3 when compared to other interviewers. The Lead Supervisory Telephone Interviewer’s job required her to make sure interviewers were using the proper codes to track downtime. She questioned Complainant to ensure that he was using the proper code, but no disciplinary action was taken. Regarding claim (5), Agency policy prohibits opened food containers and eating on the production floor. Complainant had an unpeeled banana on his desk and the Supervisory Telephone Interviewer verbally counseled Complainant about this. Finally, as to claim (6), while it is unclear when this incident occurred, the record revealed that Complainant had arrived to the facility to work extra hours on an unscheduled day. Rather than signing the downstairs sign-in sheet, Complainant had signed in as a visitor upstairs. A Supervisory Telephone Interviewer, verbally counseled Complainant for “not signing in on the sign-in sheets downstairs.” The AJ concluded that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. 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 or retaliatory animus. Here, however, Complainant has failed to establish such a dispute. 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 preponderance of the evidence did not establish that Complainant was discriminated or retaliated against by the Agency as alleged. 2021004768 4 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). 2021004768 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 March 31, 2022 Date