EEOC Appeal 2020001546

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kathy D.,1
Complainant,
v.
Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 2020001546
Hearing No. 480-2018-00365X
Agency No. 63-2017-00107
DECISION
On December 16, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s November 1, 2019 final order concerning her 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.
BACKGROUND
During the period at issue, Complainant worked as a Field Representative at the Agency’s Los
Angeles Regional Office in Los Angeles, California.
On April 9, 2017, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her based on race (Asian), national origin (Filipino, American,
Spanish), and in in reprisal for protected EEO activity (prior EEO activity) when:
1. 	on December 22, 2016, the Field Supervisor (“supervisor”) gave her an annual
performance rating of Leave 2 for Fiscal Year 2016;
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.

2 	2020001546
2. 	on January 9, 2017, the supervisor denied her payment of 4.0 hours which she
legitimately worked on January 1, 2017, resulting in her not being paid for this time
worked until the third pay period of 2017;
3. 	on January 11, 2017, the supervisor denied her request for adjustment of production
hours for the National Crime and Victimization Survey (NCVS) work which she
performed for other teams during the December 2016 survey period;
4. 	on January 13, 2017, the supervisor unreasonably reduced her American Community
Survey assignment by 12 cases, without prior notice and discussion;
5. 	the supervisor has manipulated Complainant’s survey response and production ratings,
and continuously reported her performance ratings incorrectly to others and in February
2017, the Field Supervisor accused her of being behind on survey goals;
6. 	in February 2017, the supervisor manipulated payroll task codes and hours worked
between surveys, causing Complainant’s NCVS production hours to increase;
7. 	on June 19, 2017, the supervisor incorrectly accused her of not meeting survey goals,
and threatened to reduce her assignments;
8. 	on July 25, 2017, the supervisor assigned her work when she was scheduled to be off
from work from July 25, 2017 to July 30, 2017;
9. 	in September 2017, the supervisor demanded that she complete a full month of work in
6 days before going on approved Bereavement Leave that she was taking due to the
death of a family member, despite having given sufficient advance notice to Field
Supervisors regarding her leave; and
10. for the September 2017 survey period, the supervisor charged against her survey cases
where respondents had refused other Field Representatives. 	Complainant noted that
these cases were assigned and worked by other Field Representatives while she was on
approved leave.
After an investigation, the Agency provided Complainant with a copy of the investigative file, and
Complainant requested a hearing before an EEOC Administrative Judge (AJ). 	Thereafter, the
Agency submitted a Motion for Decision Without a Hearing. 	Complainant responded to the
motion. 	On October 22, 2019, the AJ issued a decision by summary judgment in favor of the
Agency. The Agency thereafter issued the instant final order implementing the AJ’s decision.
The instant appeal followed. Complainant did not submit a brief on appeal.

3 	2020001546
ANALYSIS AND FINDINGS
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).
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 animus. Here, however, Complainant 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.
In finding no discrimination by summary judgment, the AJ found that the record developed during
the investigation established the following undisputed facts.
The AJ noted that in regard to claim 1, Complainant asserted that on December 22, 2016, the
supervisor gave her an annual performance rating of Level 2 for Fiscal Year 2016. According to
the supervisor (Caucasian, Canadian), she stated that she rated Complainant at a Level 2 “because
Complainant regularly failed to submit reports, would not respond to her supervisors in a timely
manner, behaved disrespectfully with [supervisor], and achieved low production and response
rates according to data generated by the Agency’s Regional Office Survey Control system, which
is based on information that field representatives like Complainant submit into the Agency
systems.”
Regarding claim 2, on January 9, 2017, the supervisor denied her payment of 4.0 hours which she
legitimately worked on January 1, 2017, resulting in her not being paid for this time worked until
the third pay period of 2017.
The supervisor stated that while Complainant charged 8 hours of interviewing on New Year’s Day
“yet, she completed no interviews. One of my tasks as a supervisor is to certify staff payroll. I
cannot certify payroll that is clearly fraudulent and falsified. The Complainant’s case activity for
January 1 st did not support 8 hours of work.

4 	2020001546
I was instructed by my supervisor, [Acting Supervisory Survey Statistic/Survey Manager], to deny
the hours and inform the Complainant of the decision.”
Regarding claim 3, Complainant alleged that on January 11, 2017, the supervisor denied her
request for adjustment of production hours for the NCVS work that she performed for other teams
during the December 2016 survey period.
The AJ noted that the supervisor did not adjust or increase the normal production hours for the
December 2016 NCVS cases because Complainant attempted to conduct the interviews through
telephone instead of in-person and “even if Complainant had conducted an in-person interview,
the cases were all within 15 miles of Complainant’s duty station.”
Regarding claim 4, Complainant alleged that on January 13, 2017, the supervisor unreasonably
reduced her American Community Survey assignment by 12 cases without prior notice and
discussion.
The AJ noted that the supervisor assigned Complainant’s cases because she was significantly
behind and had not met the survey’s progress goals. 	Specifically, the supervisor averred that
Complainant “expresses no regard for her team or our customers, the respondents, or the institution
she is employed by. My job as a supervisor is to ensure that the work on all surveys is completed
on time and within budget with the staff we have available while considering respondent burden
and allowing respondents the time and space to respond to our surveys. If a team member is not
completing [his or her] work on time, on all surveys and not working in such a manner as to respect
the respondents, I must take action.”
The Assistant Regional Director (Asian, Chinese) stated that while she did not have any
discussions with Complainant or the supervisor related to the subject claim. However, she stated
that Field Representatives “are not entitled to a set number of survey case assignments. 	The
number of cases assigned depend on various factors such as workload, availability, and
performance. Protected classes of a Field Representative do not come into account. It is common
for assignment sizes to be reduced without prior notice or discussion.”
Regarding claim 5, Complainant claimed that the supervisor has manipulated her survey response
and production ratings, and continuously reported her performance ratings incorrectly to others
and in February 2017, the Field Supervisor accused her of being behind on survey goals.
The supervisor asserted that she did not have the ability to “manipulate” or change the production
or response rate data recorded in the Agency system, and no report shows that the changes were
made to Complainant’s data by anyone at the LARO during Fiscal Year 2016.
Further, the supervisor stated that she has never accused any of her staff being behind on goals and
“I have sent out numerous reports to all of my staff on all surveys to keep them apprised of
individual and team progress.

5 	2020001546
Many times, the Complainant has been behind the goals…Complainant does not appear to
understand how progress reports are calculated on a daily basis and thus does not agree with team
reports. 	The Complainant seems to believe that if she has wrapped up a case, that is ‘done.’
Complainant work is complete when it is transmitted and check in, not before.”
Regarding claim 6, Complainant asserted that in February 2017, the supervisor manipulated
payroll task codes and hours worked between surveys causing her NCVS production hours to
increase.
The supervisor asserted that she never manipulated payroll for any of her employees, including
Complainant. She noted that Complainant admitted to manipulating her payroll in order to reduce
her NCVS production hours while she was on leave in late December 2016. The supervisor stated
that when she returned to work, she certified the payroll for the subject time period and questioned
Complainant’s charging of time “to a project that she had no active assignment for. In her written
statement, she admits to purposefully charging to the incorrect task code. I reported this incident
to my supervisor and had payroll correct the project codes to reflect the work actually done.”
Regarding claim 7, Complainant asserted that on June 19, 2017, the supervisor incorrectly accused
her of not meeting survey goals and threatened to reduce her assignments.
The supervisor explained that on the day in question, she reassigned one of Complainant’s cases
because she had not worked on the case and a review of the record showed that the case had been
unopen for 19 days.
Regarding claim 8, Complainant claimed that on July 25, 2017, the supervisor assigned her work
when she was scheduled to be off from work from July 25, 2017 to July 30, 2017.
The supervisor acknowledged assigning Complainant work to complete on July 25, 2017, by
mistake. The supervisor stated that she did not realize that Complainant was already approved for
leave beginning on July 25, 2017 and she thought that her leave started on July 26, 2017.
Regarding claim 9, Complainant alleged that in September 2017, the supervisor demanded that
she complete a full month of work in 6 days before going on approved Bereavement Leave that
she was taking due to the death of a family member, despite having given sufficient advance notice
to Field Supervisors regarding her leave.
The supervisor stated that during the relevant period, she assigned Complainant a reduced case
load that she did not have to complete before she took leave.
Regarding claim 10, Complainant alleged that for the September 2017 survey period, the
supervisor 	charged 	against 	her 	survey cases 	where 	respondents 	had 	refused 	other 	Field
Representatives. 	Complainant noted that these cases were assigned and worked by other Field
Representatives while she was on approved leave.

6 	2020001546
The AJ noted that under Agency policy, an uncompleted case is charged to the Field Representative
that was originally assigned the case, even if a second Field Representative was asked to attempt
the case and was unable to complete the case.
Here, the undisputed evidence of record fully supports the AJ’s conclusion that there is no support
for a finding that Complainant’s race, national origin or retaliatory animus played any role in the
events at issue. In sum, we conclude that the AJ correctly determined that the preponderance of
the evidence did not establish that Complainant was discriminated against or subjected to unlawful
retaliation by the Agency as alleged.
CONCLUSION
We AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing, finding no
discrimination.
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.

7 	2020001546
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
September 17, 2020
Date