EEOC Appeal 2020000198

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Horace H., 1
Complainant,
v.
Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 2020000198
Hearing No. 531-2018-00259x
Agency No. 63-2017-00227
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 26, 2019, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. 	For the following reasons, the Commission AFFIRMS the
Agency’s final decision finding no discrimination as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Field Representative.
GS-4, at the Agency’s 	Philadelphia Regional Office in Philadelphia, Pennsylvania. 	He was a
probationary employee.
According to statements in the record, Complainant was assigned to conduct a census survey at a
specific unit in Loft 14, a Washington, DC condominium complex. Because of a previous visit to
Loft 14, Complainant knew he did not have free access to the building but did not know the front
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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desk would be unattended when he returned on July 5, 2017. Hence, he said he tried to enter the
building as a man was exiting. 	According to Complainant, the man confronted him and denied
him access purportedly because there had been criminal activity in the building and the tenants
had been instructed not to allow strangers inside. Complainant said that he showed the man his
credentials and explained his purpose for trying to enter the building, but he said the man
responded by invading his personal space and using profanity. Complainant said they exchanged
inappropriate words before Complainant left. On July 10, 2017 Complainant said he returned to
the building with the intent to leave census materials for the tenants. He said that the receptionist
inquired as to whom he specifically wished to see and she rejected his explanation that the census
is directed at addresses and not specific persons. He explained that because he was unsure as to
whether the receptionist would give the tenants the census materials, he gave her a letter that is
provided to building management officials and questioned her as to whether she would give the
census information to the residents before departing.
The building management company filed a written complaint about Complainant's conduct on July
5 and 10, and provided the Agency with two video tapes of Complainant’s interactions with the
tenant and the receptionist in the lobby of an apartment building. The Agency’s Management
Team, which was comprised of the Regional Director, two Assistant Regional Directors, and four
Program Coordinators, viewed the two videos of the incidents. The Regional Director stated that
Complainant was disrespectful, unprofessional, and inappropriate during both incidents. Members
of the Management Team agreed with this perspective. The Regional Director said the
Management Team consulted a Human Resources Specialist in the Employee Relations Branch,
which recommended termination after consulting Legal Counsel and her Team Lead. The record
indicates that upper management officials on the Management Team concurred with the
recommendation and Complainant received a termination letter dated July 19, 2017.
On September 15, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male) 2 , color (Not
Specified), age (63), and in reprisal for prior protected EEO activity when he was terminated
effective July 21, 2017. In his complaint, Complainant alleged that he was denied access to the
building because he was an older Black man, and that the Agency betrayed him for trying to do
his job when it denied him an opportunity to view the videos with the Management Team and
share his side of the story. Further, in his affidavit, Complainant asserted that all of his supervisors
were aware of his race and sex because they had viewed the videos, and, according to the
counselor’s report, he stated that he was terminated “because of the implicit bias towards the ‘angry
Black male.’”
After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of his right to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ).
2 Although Complainant did not identify sex as a basis on his formal complaint, he did indicate in
his affidavit that he believed he was terminated due to being “the angry Black male.” Thus, the
Agency considered Complainant may be alleging sex discrimination.

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Complainant timely requested a hearing but subsequently withdrew his request. 	Consequently,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Specifically, the Agency found that Complainant failed to establish a prima facie case of
discrimination or retaliation. With respect to his disparate treatment claim, the Agency stated that
Complainant could not satisfy the second element because he could not show that he was meeting
the legitimate expectations of his employer; and he was unable to satisfy the third element because
he could not show that he was discharged without cause or identify a similarly situated employee
or employees outside of his protected classes who were treated more favorably.
Regarding his retaliation claim, the Agency noted that Complainant’s only protected activity was
the instant EEO complaint. Thus, the Agency found that Complainant could not establish a causal
connection between the adverse action and his protected activity because he filed his EEO
complaint after the termination.
The Agency added that even if Complainant had established a prima facie case of disparate
treatment, he did not offer any proof of pretext. The Agency noted that Complainant did not
understand how the Management Team decided about his character when they did not know him;
but the Agency noted that the termination letter was based on Complainant’s altercations with a
building tenant and a receptionist, and not his character. 	In addition, the Agency noted
Complainant admitted that he used profanity during the confrontation with the tenant and that he
had a disagreement with the building receptionist – both reasons cited for the termination. 	The
Agency determined Complainant failed to establish that it based his termination on prohibited
discriminatory factors.
ANALYSIS AND FINDINGS
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”).
On appeal, neither party submitted a brief. In the present case, the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the Agency terminated Complainant based
on two incidents of inappropriate conduct with Loft 14’s tenant and receptionist, incidents to which
Complainant admits. Complainant failed to show that the reasons were a pretext for race, color,
sex, or age discrimination or retaliation.

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CONCLUSION
The Commission AFFIRMS the Agency’s decision finding that Complainant was not subjected to
discrimination or retaliation as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. 	Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 	In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. §
1614.403(g). 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.

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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
August 27, 2020
Date