Complainant,v.Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Jul 25, 2014

0120131342 (E.E.O.C. Jul. 25, 2014)

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

,
Complainant,

v.

Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.

Appeal No. 0120131342

Hearing No. 570-2012-00272X

Agency No. HUD-00055-2011

DECISION
Complainant filed an appeal from the Agency’s final order dated January 3, 2013, finding no
discrimination with regard to her complaint. For the following reasons, we AFFIRM the
Agency’s final order finding no discrimination.

BACKGROUND
In her complaint, dated June 6, 2011, Complainant, a Special Assistant, GS-15, at the
Agency’s Office of Strategic Planning and Management (OSPM), Washington, DC, alleged
discrimination based on race (African American) and in reprisal for prior EEO activity when:
(1) on March 22, 2011, she received an Opportunity to Improve Notice; (2) on February 16,
2011, she received an email from her supervisor stating he would no longer approve leave
requests submitted by her; (3) on January 21, 2011, she was given an “Unsatisfactory”
performance rating for the 2009 – 2010 performance cycle; and (4) on January 18, 2011, she
was denied telework. Upon completion of the investigation of the complaint, Complainant
requested a hearing before an EEOC Administrative Judge (AJ). On December 11, 2012, the
AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final
order implemented the AJ’s decision.

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
0120131342

2
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. Moreover, despite Complainant’s contentions on appeal, we find the
record was fully developed.
In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The record indicates that during the relevant time period at
issue, Complainant worked as a Special Assistant to her supervisor, the OSPM Director. With
regard to claim (1), the supervisor indicated that he issued Complainant the notice at issue
concerning her poor performance in accordance with the Agency’s policy because she had been
rated “unacceptable” in one or more critical elements in her performance rating, described in
claim (3), below. Specifically, the supervisor stated that Complainant was rated unacceptable
for her responsibilities with the start-up of the OSPM in that she was unable to do this work
and in some instances she did not even try.

With regard to claim (2), the supervisor indicated that Complainant often arrived at work late
and sometimes she failed to notify him of her late arrival. He also stated that when
Complainant was not able to make up the time during the day, she would put in for annual
leave. Complainant does not dispute this. On the date of the alleged incident, stated the
supervisor, he told her that he would no longer approve her leave requests to make up for her
late arrivals. The supervisor indicated that previously, on January 21, 2011, he issued
Complainant a counseling memorandum relating to her time and attendance issues.
Complainant does not dispute this.

With regard to claim (3), the supervisor stated that although Complainant was a GS-15, she
performed duties of a lower graded administrative assistant. The supervisor also indicated that
Complainant had a lack of work ethic, contribution, and commitment, and she did not meet
performance expectations of her grade level as his Special Assistant.

With regard to claim (4), the supervisor indicated that on the date of the alleged incident
although he initially denied Complainant’s request for telework due to inclement weather, he,
nevertheless, allowed her to telework when he learned that the Office of Personnel
0120131342

3
Management approved the use of emergency telework for all federal employees. The
supervisor stated that he initially denied Complainant’s request for telework because her job
duties included providing support to him, i.e., answering his phone and printing and making
copies, which could not be done from home. The record indicates and Complainant does not
dispute the fact that the supervisor approved her requests for telework due to her personal
reasons on many other occasions.

After a review of the record, we agree with the AJ that Complainant failed to rebut the
Agency’s legitimate, nondiscriminatory reasons for the alleged incidents. Furthermore, we
find that Complainant failed to show that she was treated less favorably than a similarly
situated employee under similar circumstances. Based on the foregoing, we find that
Complainant has failed to show that the Agency’s actions were motivated by discrimination as
she alleged.

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). 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 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
0120131342

4
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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 25, 2014