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

Equal Employment Opportunity Commission

Oct 12, 2022

Appeal No. 2022000527 (E.E.O.C. Oct. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rico M.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2022000527 Agency No. 63-2021-00098D 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 October 18, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant previously worked as an Administrative Clerk at the Agency’s Inglewood Area Census Office in Los Angeles, California. On November 24, 2020, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on age (79) when, on October 16, 2020, Complainant was dismissed from his position of Administrative Specialist by an Office Manager who asserted it as was “For Lack of Work.” 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 EEOC Administrative Judge (AJ). Complainant requested a final decision. 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. 2022000527 2 On October 18, 2021, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination was established. The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary’s Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, the Agency articulated legitimate, non-discriminatory reasons for terminating Complainant’s employment. The record reflects, and Complainant acknowledges, that Complainant was hired as a temporary employee to provide support operations in preparation for the Agency’s 2020 Decennial Census. The record further reflects that Complainant temporarily was hired on December 23, 2019, with a “not to exceed” date of November 17, 2020. Complainant testified, however, that his employment was prematurely terminated on October 16, 2020, with approximately four or five other employees who Complainant asserted were over 40 years old. Although Complainant acknowledged that there was reduction in workforce, Complainant asserted that the employees who continued working were “far younger and had far less seniority.” 2022000527 3 Complainant further asserted that he had been a good employee as he had received “numerous praise” for his work, and the Agency should have considered his work performance and tenure instead of his age when management ended his employment. However, the Acting Area Census Office Manager (Office Manager, 58) explained that Complainant’s position was a temporary one and that the November 17, 2020 “not to exceed” (NTE) date was not guaranteed, as Complainant’s employment could have ended prior to this date. Additionally, due to the temporary position, the Office Manager indicated that seniority was not assigned to any of the employees. The Office Manager further explained that the division had reached the end of operations on October 16, 2020, and consequently, there was a lack of work. As a result, the Office Manager stated that approximately ten to thirteen employees, along with Complainant, were released from the Agency. The Office Manager clarified that the temporary employees closest to their NTE dates were released from the Agency first, and employees who had NTE dates later than Complainant’s NTE were not dismissed. Therefore, the Office Manager disputed Complainant’s assertion that the terminations were based on age. The Office Manager also noted that of the employees dismissed with Complainant, some were older and younger than Complainant. The Office Manager further noted that he was unaware of Complainant’s age at the time Complainant’s termination. Complainant’s Office Supervisor (55) further corroborated the Office Manager’s testimony that the dismissals were based on the needs of the office as operations were ending. The Office Supervisor explained that, during the period at issue, there were only two to three weeks left of operations, and employees needed to be dismissed. The Office Supervisor further explained that explained that NTE dates were a “major factor” in determining which employees were dismissed first. The Office Supervisor also noted that she was unaware of Complainant’s exact age. A copy of Complainant’s SF-50 states that his employment was terminated due to “lack of work.” Additionally, the record includes an October 14, 2020 email to staff indicating stating, in pertinent part, “as of today, well over 99.9% of housing units have been accounted for in the 2020 Census. Self-response and field data collection operations for the 2020 Census will conclude on October 15, 2020.” After careful consideration of the record, we conclude that, neither during the investigation nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s age. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2022000527 4 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). 2022000527 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 October 12, 2022 Date