Zada C.,1 Complainant,v.Penny Pritzker, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Apr 8, 2016

0120150349 (E.E.O.C. Apr. 8, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Zada C.,1
Complainant,

v.

Penny Pritzker,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.

Appeal No. 0120150349

Hearing No. 530-2014-00055X

Agency No. 63-2012-02015

DECISION

Complainant filed an appeal from the Agency’s final order dated October 2, 2014, finding no
discrimination with regard to her 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.
For the following reasons, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

In her complaint, dated November 2, 2012, Complainant alleged discrimination based on race
(African American) and sex (female) when she was terminated from her employment during
her trial/probationary period effective September 17, 2012. Upon completion of the
investigation of the complaint, Complainant requested a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). On September 22, 2014, the AJ issued a
decision without holding a hearing, finding no discrimination. The Agency’s final order
implemented the AJ’s 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.

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ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. 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 this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The record indicates that on July 12, 2011, Complainant was
appointed to a Schedule A excepted service Field Representative (FR), GS-0303-04, position,
subjected to a two-year trial/probationary period, with an intermittent schedule, with the
Agency’s Philadelphia Regional Office. As a FR, Complainant was required to interview
respondents to collect data as required on one or more current recurring surveys such as the
Current Population Survey (CPS) and the American Community Survey (ACS); and she was
required to travel throughout a designated area, explain surveys, conduct interviews of
members of the public, enter data into survey forms, and keep complete and accurate records
for reporting purposes.

Complainant’s second level supervisor (S2) indicated that on September 13, 2012, he
terminated Complainant from his employment with the Agency effective September 17, 2012,
as alleged due to her unacceptable performance during her probationary period. Specifically,
S2 stated that Complainant’s response and production rates for the CPS and the ACS –
“Stratum MA” were unacceptable because they did not meet the required standards. S2
indicated that during the period February 1, 2012, through July 31, 2012, Complainant’s
cumulative response rate for the ACS was 70.77% and production rate was 6.13 hours per
case, which was Level 1 (unacceptable performance). To be acceptable during the relevant
time period, stated S2, Complainant’s ACS cumulative response rate should have been equal to
or higher than 92.00% and production rate equal to or less than 2.00 hours per case. S2 also
indicated that during the period October 1, 2011, through July 31, 2012, Complainant’s
cumulative response rate for the CPS was 66.67% and production rate was 104.35 minutes per

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case, which was Level 1 (unacceptable performance). To be acceptable during the relevant
time period, stated S2, Complainant’s CPS cumulative response rate should have been equal to
or greater than 88.80% and cumulative production rate equal to or less than 83.0 minutes per
case. Complainant does not dispute the foregoing.

Complainant’s first level supervisor (S1) stated that Complainant was well informed of her
position requirements at the time she was hired and that she was given training for her
position. S1 stated that Complainant however was not getting the required interviews done as
required. We note that although Complainant claimed that she had problems with an identified
trainer in February and March, 2012, this matter is not a live issue in the instant complaint;
nor did she claim that the subject incident was based on any unlawful discrimination.

We agree with the AJ that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reasons for her termination. After a review of the record, we find that
Complainant failed to show that there were any similarly situated employees not in her
protected groups who were treated differently under similar circumstances. Based on the
foregoing, we find that Complainant failed to show that the Agency’s action was motivated by
discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail

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within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
The request or opposition must also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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

April 8, 2016
Date