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

Equal Employment Opportunity Commission

Jul 10, 2014

0120130540 (E.E.O.C. Jul. 10, 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. 0120130540

Agency No. HUD 00050 2011

DECISION
On November 14, 2012, Complainant filed a timely appeal from the Agency’s August 30,
2012 final decision concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq.1

Our review is de novo. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources
Specialist, GS-0201-13, at the Agency’s work facility in Washington, D.C. On May 26, 2011,
Complainant filed an EEO complaint wherein she claimed that the Agency discriminated
against her on the bases of her race (Caucasian) and sex (female) when:

1. On January 3, 2011, Complainant learned that she had not been selected for the
position of Branch Chief (Supervisor Human Resource Specialist), GS-14, located in
the Office of the Chief Human Capital Officer.

2. On October 25, 2010, Complainant’s Supervisor assigned her duties at a higher grade
level and temporarily detailed her to a GS-14 position. However, Complainant was not
promoted at the conclusion of the temporary detail.

Complainant also claimed that she was retaliated against when:

1 Complainant received the final order on October 15, 2012, and filed an appeal postmarked
November 14, 2012.
0120130540

2

3. During a staff meeting on March 16, 2011, awards and recognition were given to a
group of employees in the office, but the rationale the Supervisor utilized to determine
their entitlement kept Complainant from receiving an award.

4. Complainant’s new Supervisor scrutinized her work on a daily basis and accused
Complainant of providing poor customer service.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). When Complainant did not request a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b).

In its decision, the Agency noted that Complainant stated that she had received a 120-day detail
performing GS-14 duties associated with the Pay and Compensation Branch Chief position.
Complainant maintained that she was informed that she would be promoted if she successfully
performed the duties of the position. The Agency stated that the detail was subsequently
reduced to thirty days. As a result, Complainant was not paid more during her detail because
the temporary promotion to a Branch Chief position on a thirty-day detail did not provide for
higher pay. Complainant subsequently applied for the position when a vacancy was announced,
and Complainant was not selected.

The agency found that Complainant failed to establish a prima facie case of sex discrimination
as the selectee was also female. The Agency stated that Complainant established a prima facie
case of race discrimination, but that it articulated legitimate, nondiscriminatory reasons for her
nonselection. According to the selecting official, Complainant was not temporarily promoted
to the GS-14 position, but she was afforded an opportunity to show that she could perform the
position’s duties. The selecting official stated that Complainant’s blocks of absences, inability
to work with her team to finish a training project, and other issues that surfaced during her
detail were the reasons for neither promoting her at the end of the detail nor selecting her for
the Branch Chief position. The Agency stated that Complainant failed to show that her
qualifications were observably superior to those of the selectee.

With respect to Complainant’s reprisal claim, the Agency explained that management asserted
that the employees who received recognition and awards for their customer service were
identified prior to any notice of the complaint. The Agency further stated that the Supervisor
monitored the work assigned to her staff and made inquiries when necessary to assure accurate
completion of assignments. The Supervisor denied telling Complainant that she provided poor
customer service. The Supervisor maintained that she communicated with Complainant in
response to a customer’s complaint.

The Agency determined that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. Thereafter, Complainant filed the instant appeal.
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ANALYSIS AND FINDINGS
We shall assume arguendo that Complainant established a prima facie case of discrimination.
The Agency explained that Complainant was neither promoted nor selected to the Branch Chief
position based on the difficulties that she experienced while serving on the detail. According
to the Agency, Complainant had blocks of absences and displayed an inability to work with her
team to complete a training project. The selecting official stated that Complainant needed
growth and development before she could be promoted to the next level. The Agency also
emphasized in terms of the selection that the selectee had significantly more relevant
supervisory experience. We find that the Agency articulated legitimate, nondiscriminatory
reasons for neither promoting Complainant at the conclusion of her detail nor selecting her for
the Branch Chief position.

Complainant attempts to establish pretext by arguing that she was not afforded enough time in
the thirty-day detail to prove that she could perform the position duties successfully.
Complainant contends that the selecting official admitted she was unsure about hiring the
selectee and Complainant also questioned why the Director recommended the selectee for the
position, given that the selectee was not “on staff.” We note that the selectee had worked at
the Department of Commerce as a Supervisory Human Resources Specialist for nearly four
years and possessed skills in payroll, compensation and benefits. We find that these arguments
presented by Complainant are not sufficient to establish pretext. Complainant has not refuted
the Agency’s reasons for not promoting her, and she has not shown that her credentials in
terms of the selection were in any way superior to those of the selectee.

With respect to the alleged reprisal, the Agency stated that the reason Complainant was
excluded from recognition in a newsletter was that unlike those who were recognized,
Complainant had not received positive feedback from external customers in 2011. With
respect to her Supervisor’s scrutiny, we find that it was to ensure the timely and accurate
completion of assignments. We find that the Agency articulated a legitimate, nondiscriminatory
reason for management’s actions, and Complainant has not presented any persuasive argument
to establish that this explanation was pretext to hide retaliatory intent.

CONCLUSION
For the reasons set forth above, we AFFIRM the Agency’s final decision.

0120130540

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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
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.

0120130540

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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 10, 2014