Alexis D.,1 Complainant,v.Dr. Benjamin S. Carson, Sr., M.D., Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Jun 20, 2018

0120162663 (E.E.O.C. Jun. 20, 2018)

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

Alexis D.,1
Complainant,

v.

Dr. Benjamin S. Carson, Sr., M.D.,
Secretary,
Department of Housing and Urban Development,
Agency.

Appeal No. 0120162663

Hearing No. 541-2015-00028X

Agency No. HUD-00137-2013

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the August 17, 2016 final agency decision (FAD) 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. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Project Manager,
GS-1101-12, at the Agency’s Miami Multifamily Office in Miami, Florida. On August 1, 2013,
Complainant claimed that she was sitting at her desk when she overheard a co-worker (CW-1)
having a conversation with a property owner about a property in her assigned portfolio (Property
1). Complainant alleged that she overheard CW-1 say “[Complainant]? Well, I know she is
stupid! You know she’s an idiot…she is dumb.” Further, Complainant stated that she heard CW-
1 say that she had told others about her and that she and Complainant’s supervisor (S1) had tried
to have her terminated. Complainant informed CW-1 that she overheard her conversation with
the property owner and that she overheard CW-1 say some demeaning things about her.

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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Complainant then asked why CW-1 was speaking to one of her property managers. CW-1
explained that the property owner had called, but Complainant had not called him back.
Complainant asked why CW-1 did not take a message and reminded her that something similar
had happened previously.

Later that day, Complainant spoke with S1 about the incident. Complainant claimed that S1 told
her that she was going to be out of the office for three weeks and would discuss the matter with
CW-1 when she returned. The next day, Complainant alleged that she was informed by another
co-worker (CW-2) that she was taking over Property 1 and working from home. Complainant
was asked to send CW-2 the documents related to Property 1.

On August 23, 2013, Complainant sent an email to several senior management officials and
attached a memorandum entitled “Miami Multifamily Hostile Work Environment” which
described the August 1, 2013 incident and other issues. When S1 returned from leave on August
26, 2013, Complainant forwarded S1 a copy of the email and memorandum. Complainant
alleged that S1 burst into her office and angrily demanded to know why she sent the email and
why she was accusing her of bullying. Complainant claimed that she bowed her head and waited
for S1 to stop screaming at her.

On September 12, 2013, S1 sent Complainant an email scheduling a meeting to discuss the
August 1, 2013 incident between her and CW-1. Complainant claimed that S1 read the email
aloud during the meeting which described Complainant’s version of the incident. CW-1
admitted making some of the comments, but denied that she and S1 were trying to have
Complainant terminated. After CW-1 left the meeting, Complainant claimed that she was
questioned about her allegations that supervisors bullied her. Complainant had alleged that CW-
1 had changed properties in the Agency’s system, including Property 1, and had not been
reprimanded for her behavior. Additionally, Complainant claimed that S1 said that she did not
believe that CW-1 made the comment about trying to have her terminated. Following the
meeting, Complainant claimed that S1 would “brow-beat” her about the issues she raised.
Complainant alleged that management did nothing regarding the bullying and hostile treatment
of her.

Complainant claimed that S1 scrutinized and monitored her work. Complainant alleged that on
one occasion, S1 stood over her and told her to log on to her computer while sitting close to her.
Complainant claimed that this made her nervous because of how close S1 was sitting and
scrutinizing what was on her computer screen. Complainant alleged that CW-1 was monitoring
her work on Property 1 and jumping in to work with the property owners in her portfolio.
Complainant further claimed that CW-1 controlled the correspondence log and it seemed like her
work never cleared the log.

On January 21, 2014, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(African-American), sex (female), color (dark-skinned), and reprisal for prior protected EEO
activity as evidenced by multiple incidents including, inter alia, management and co-workers
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talked to her in a rude, demeaning and condescending manner; management and co-workers
constantly monitored and scrutinized her work; co-workers stated that they are trying to get her
terminated; management and co-workers have called her “stupid” and “dumb;” and management
reassigned her work without her knowledge.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge. Complainant timely requested a hearing, but subsequently withdrew her
request on November 13, 2015. The AJ issued an Order of Dismissal dismissing the hearing
request on November 20, 2015, and remanded the matter to the Agency for issuance of a FAD.
The Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b) on August 17, 2016.

In the FAD, the Agency determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that management
had articulated legitimate, nondiscriminatory reasons for its actions. In particular with respect to
the August 1, 2013 incident, Complainant reported the incident to S1 late in the day and S1
informed her that she would speak with CW-1 when she returned from vacation. Complainant
sent an email to several management officials alleging a hostile work environment based on the
incident with CW-1 and bullying by supervisors. When S1 returned, she received the email from
Complainant and walked to her cubicle to inquire further. S1 stated that she asked Complainant
to tell her when she felt bullied by her, and that she was sorry if Complainant felt bullied. S1
denied stomping over to Complainant and screaming at her.

S1 scheduled a meeting with Complainant, CW-1, and S2 on September 16, 2013. The Agency
determined that during the meeting, CW-1 admitted that she did say some things about
Complainant, but explained that she had become frustrated that Complainant’s work did not get
done. CW-1 denied calling Complainant stupid or dumb, but admitted that she told the property
manager that Complainant was incompetent. CW-1 denied saying that she and S1 were
attempting to get Complainant terminated especially since she was not a supervisor and could not
get anyone terminated. CW-1 affirmed that she apologized to Complainant and told her that she
felt really bad. CW-1 stated that she told Complainant that it would not happen again and
Complainant accepted her apology. CW-1 was instructed to cease making negative comments
about Complainant or any other employee to other employees or anyone outside of the office.
CW-1 was dismissed from the meeting and Complainant and S1 spoke regarding Complainant’s
allegations of supervisory bullying. S1 asked for examples and Complainant only mentioned her
reaction to her email on August 26, 2013.

Regarding Complainant’s claim that management scrutinized her and reassigned her work, CW-1
stated that she had no control over the work assigned and would never reassign anyone’s project
without a supervisor telling her to do so. S1 noted that properties were reassigned between staff
all the time. Specific to Property 1, S1 stated that Property 1 was considered a “troubled”
property and that troubled properties were serviced by the Senior Project Managers. S1 added
that the co-worker was a Senior Project Manager and that since Complainant had not worked on
it and the property’s contract would be up soon, the property was reassigned to a Senior Project
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Manager. S1 advised that she was sure Complainant was told about its reassignment since it was
considered a trouble property and should be serviced by a Senior Project Manager. With respect
to the computer incident, S1 explained that Complainant had asked her to figure something out
and since she wears reading glasses, she pulled up a chair to sit close to the computer. S1 noted
that Complainant made a remark about being nervous, but she thought Complainant was joking
because it was a strange thing to say.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been subjected
to discrimination, reprisal, or a hostile work environment as alleged. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant requests that the Commission issue a sanction against the Agency in the
form of default judgment for its failure to timely issue a FAD. Complainant notes that the
Agency’s FAD was over seven months overdue before it was issued and that default judgment
should be entered to remedy any adverse impact to Complainant. Complainant cites several
cases where similar delays were sanctioned by the Commission. Accordingly, Complainant
requests that the Commission vacate the FAD and enter default judgment in favor of
Complainant as a sanction for the untimely issued FAD.

ANALYSIS AND FINDINGS

Complainant’s Request for Sanctions Against the Agency

Initially, the Commission notes that on appeal, Complainant requests that the Commission issue
default judgment against the Agency as a sanction for its failure to timely issue its FAD. In
response to Complainant's appeal, the Agency asserts that its delay in issuing the FAD was the
result of numerous factors including significant employee turnover in the Office of Departmental
Equal Employment Opportunity, large caseloads for its employees, and the physical relocation of
its office. The Agency contends that its delay was unintentional and that default judgment is not
warranted.

EEOC Regulations provide that an agency shall issue the final decision within 60 days of
receiving notification that a complainant has requested an immediate decision from the agency,
or within 60 days of the end of the 30-day period for the complainant to request a hearing or an
immediate final decision where the complainant has not requested either a hearing or a decision.
29 C.F.R. § 1614.110(b).

The Commission has exercised its inherent authority to enforce its 29 C.F.R. Part 1614
regulations by ordering sanctions in response to similar types of violations. See Complainant v.
Dep't of Energy, EEOC Appeal No. 0120113823 (Nov. 17, 2015) (sanction warranted where
agency failed to submit hearing transcripts on appeal); Complainant v. Dep't of the Air Force,
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EEOC Appeal No. 0120110789 (Sept. 24, 2013) (sanction appropriate where agency failed to
provide copy of hearing record, including hearing transcripts).

Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the
non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv.,
EEOC Appeal No. 07A30133 (June 16, 2005). On the other hand, they are corrective and
provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be
tailored to each situation by applying the least severe sanction necessary to respond to a party’s
failure to show good cause for its actions and to equitably remedy the opposing party. Royal v.
Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are
considered in tailoring a sanction and determining if a particular sanction is warranted: (1) the
extent and nature of the non-compliance, and the justification presented by the non-complying
party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the
consequences resulting from the delay in justice; and (4) the effect on the integrity of the EEO
process. Gray v. Dep't of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007).

The Commission notes that our regulations require agency action in a timely manner at many
points in the EEO process. Tammy S. v. Dep't of Def., EEOC Appeal No. 0120084008 (June 6,
2014). Compliance with these timeframes is not optional. As the Commission stated in Royal,
“the Commission has the inherent power to protect its administrative process from abuse by
either party and must insure that agencies, as well as complainants, abide by its regulations.”
Because of the length of time it can take to process a federal sector EEO complaint, any delays in
complying with the timeframes in the regulations can impact the outcome of the complainant’s
claims. Id.

In the instant case, the Agency does not dispute that it issued its FAD over 200 days late.
However, in the instant case, Complainant has not made a showing that she was prejudiced by
the Agency’s delay in issuing the FAD. Thus, although the Agency failed to issue a timely
decision as required by regulation, the Commission finds that the Agency did not act in a manner
to warrant a default judgment sanction. See, e.g., Josefina L. v. Soc. Sec. Admin., EEOC Appeal
No. 0120142023 (July 19, 2016), req. for recon. den'd, EEOC Request No. 0520170108 (Feb. 9,
2017) (finding that the Agency’s 571-day delay in issuing the FAD did not warrant sanctions, as
complainant did not show she was prejudiced by the delay); Jocelyn R. v. Dep't of Def., EEOC
Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No.
01A55147 (May 12, 2006) (declining to sanction an agency that issued a FAD after
approximately 371 days)). The Commission acknowledges that the Agency has been sanctioned
in the past for violating Commission regulations. While the Commission declines to sanction the
Agency in this instance, the Agency should consider itself on notice that future noncompliance
with the Commission’s regulations could subject it to the imposition of sanctions.

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Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on her
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove her harassment claim, Complainant must establish that she was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of her protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

The Commission does not have the benefit of an Administrative Judge’s credibility
determinations after a hearing. Therefore, the Commission can only evaluate the facts based on
the weight of the evidence presented. Here, Complainant asserted that based on her protected
classes, she was subjected to a hostile work environment due to several actions that seemed
adverse or disruptive to her. The Commission concludes that the conduct alleged was
insufficiently severe or pervasive to establish a hostile work environment. The Commission has
consistently held that the discrimination statutes are not civility codes. Petty slights, minor
annoyances, and simple lack of good manners occur in the workplace. Not every unpleasant or
undesirable act which occurs constitutes a discrimination violation. See Shealey v. Equal Emp’t
Opportunity Comm’n, EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep't of
Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009)). What the discrimination statutes
forbid is behavior so objectively offensive that it alters the conditions of a complainant’s
employment. Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, the Commission finds that Complainant failed to show that the Agency’s
actions were based on discriminatory or retaliatory animus. For example, with regard to the
August 1, 2013 incident, CW-1 acknowledged speaking to a property owner and making
disparaging comments about Complainant. ROI, at 77-78. CW-1 denied saying that she was
trying to get Complainant terminated and noted that she did not have that authority. Id. at 78. S1
stated that when Complainant reported the incident to her, she informed Complainant that she
would speak with CW-1, but CW-1 was not available prior to S1 taking leave. Id. at 65. When
S1 returned from leave, she received an email Complainant had sent alleging that she had been
subjected to harassment and bullying. Id. at 248-52. S1 denied stomping to Complainant’s desk
and screaming at her; rather, S1 stated that she simply asked Complainant in a normal voice
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when Complainant believed that she “bullied” her. Id. at 65. S1 later held a meeting with
Complainant and CW-1 to discuss the incident, and CW-1 apologized for her comments. Id. at
66-67, 78. S1 instructed CW-1 to not engage in any further similar conduct. Id. at 67.

With respect to co-worker and supervisory monitoring, Complainant cited an incident where S1
made her nervous by standing over her and then sitting next to her computer as she logged on.
S1 explained that Complainant asked for help with something on her computer and S1 stated she
sat next to Complainant to see the computer better as it was difficult for her to see the computer
screen with her reading glasses. ROI, at 69. S1 denied scrutinizing or monitoring Complainant’s
work. Id. CW-1 noted that supervisors look at everything staff does as they were required to
approve work or sign letters. Id. at 79. Finally, Complainant claimed that management
reassigned her work without her knowledge and cited Property 1 as an example. S1 affirmed
that Property 1 was considered “troubled” and troubled properties were serviced by the Senior
Project Managers. Id. at 69. Further, S1 stated that because this property was troubled and the
contract was soon to expire and had not been worked on by Complainant, she reassigned it to
CW-2 who was a Senior Project Manager. Id. S1 noted that she was sure she told Complainant
that she was reassigning the property since it was considered a trouble property, and she directed
CW-1 to go into the system and change the file over to the Senior Project Manager. Id.

The Commission concludes that Complainant has not shown, based on the totality of the
circumstances, that she was subjected to a discriminatory or retaliatory hostile work
environment. Moreover, to the extent Complainant claims that she was subjected to disparate
treatment, the Commission finds that, as discussed above, Complainant has not demonstrated
that the Agency’s explanation for its actions was pretext for discrimination or reprisal. As a
result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a
hostile work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.
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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. 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.

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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

June 20, 2018
Date