0120080280
06-11-2010
Cynthia Blatt, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Cynthia Blatt,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120080280
Hearing No. 480-2006-00275X
Agency No. 05-094
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 25, 2007 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. For the reasons
which follow, the final agency order is AFFIRMED.
ISSUE PRESENTED
The issues presented are: (1) whether the Administrative Judge properly
issued a decision without a hearing regarding certain claims; and
(2) whether complainant has established that the agency discriminated
against her on the bases of sex (female), race (White), and reprisal
when she was subjected to a hostile work environment and when she was
not selected for a Program Manager position, as alleged.
BACKGROUND
The record reveals that complainant worked as a GS-12 Community Planning
and Development Representative in the Office of Community Planning
and Development, Los Angeles, California. Complainant asserts that
her first and second line supervisors subjected her to a hostile work
environment based on her race and sex when:
1. On May 12, 2005, credit was given to higher-graded male co-workers
for work that she had performed;
2. On May 18, 2005, her request for a desk audit to support a
non-merit promotion to the GS-13/14 level was not given a response;
3. As late as May 20, 2005, harassing e-mails were forwarded to
her concerning her work assignments and reports; and
4. As of June 6, 2005, the agreement for her participation with
the Leadership Training Program had not been honored.
She also contends that she was subjected to harassment on the basis of
reprisal resulting in a hostile work environment when:
5. On August 2, 2005, she was harassed regarding Religious
Compensatory Time; and
6. On August 2, 2005, she was refused approval to represent the
agency at a Memorial Service.
Finally, complainant argues that she was subjected to discrimination
based on race, sex, and reprisal when:
7. On or about June 13, 2006, she was not selected for a
GS-14 Program Manager Position.
Following an investigation by the agency, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The AJ assigned to this case
issued a decision without a hearing with respect to some of the claims
and held a hearing regarding the remaining claim. Specifically, the
AJ granted the agency's motion for summary judgment with regard to the
hostile work environment claim. The AJ found that complainant failed
to show that the incidents complained of were severe or pervasive enough
to establish a prima facie case of hostile work environment.
Notwithstanding the lack of a prima facie case, the AJ determined that
the agency had offered nondiscriminatory reasons for its actions with
regard to issues 1 through 6. Specifically, the AJ found that, with
respect to issue 1, the agency explained that complainant's supervisor
was recognized during the meeting because the meeting took place before
the agency's stakeholders and the supervisor was the person who had the
overall responsibility for the grant project. The AJ also noted that,
as a result of complainant's contributions to this project, she received
an "Outstanding" performance rating and an award.
With respect to issue 2, the agency explained that complainant was told
that she had to request the desk audit. She was also given the name of
a contact person to talk with regarding the audit. Regarding issue 3,
the agency indicated that the emails complainant received pertained to her
work product and were not sent to harass her; and with respect to issue
4, participation in the Leadership Training Program, the agency indicated
that complainant's second-line supervisor (S2) participated in the program
as his work schedule allowed. S2 indicated that complainant frequently
called him on his cell phone and at his home number. The agency indicated
that the employee whom complainant sited as a comparator, i.e. an employee
whose supervisor was much more involved as a mentor with the Leadership
Training Program, was not similarly situated to complainant because he was
supervised by someone else. With regard to issue 5, the agency explained
that leave for religious events was commonly given and complainant was
not denied leave. The agency indicated that this incident occurred
because the time-keeper was not aware of how this process worked, so
the time-keeper approached complainant about how she had prepared her
time sheet. Finally, with regard to issue 6, the agency indicated
that complainant was told that she could attend the memorial service
but that she would have to use leave. Complainant argued that, as a
representative of the agency, she should have been given administrative
leave. The agency indicated that that had not been their policy. The
AJ found that complainant failed to show that the agency's legitimate,
nondiscriminatory reasons for its actions were pretext for discrimination.
Therefore, the AJ issued a finding of no discrimination with regard to
these issues. The AJ then held a hearing with regard to the remaining
claim, the non-selection claim.
With respect to complainant's non-selection for the GS-14 Program
Manager position, the AJ found that there was no dispute regarding the
process used by the agency for the position. The applicants applied for
the position, were interviewed by a panel, and were ranked from first
through fourth. The recommending official, S2, selected the candidate
who was ranked third on the Best Qualified List, an African American male.
The selectee was already a GS-14, so the personnel action was considered
a lateral reassignment. Complainant was rated fourth by the panel.
The AJ found that complainant established a prima facie case of
discrimination as to race, sex, and reprisal. Nevertheless, the AJ
determined that the preponderance of the evidence did not show that the
agency discriminated against complainant. Specifically, the AJ found
that the agency articulated a legitimate, nondiscriminatory reason
for its action; namely, that the selectee was chosen over complainant
because he had a broader skill set, was well-spoken, was already a GS-14,
and was well-liked. In short, the agency maintained that it picked
the better-qualified candidate. Further, in response to complainant's
argument that the selectee was selected by one of the panelist because
he was Black, the AJ determined that the panelist's judgment about the
selectee most likely occurred as a result of her previous experience
working with him and not because they were both Black. Secondly,
the AJ found that complainant did not establish that she was clearly
superior to the selectee. Finally, the AJ found that overwhelming
evidence introduced at the hearing suggested that a person other than
complainant, a White female, would have been selected for the position
had the selectee declined the position. Therefore, the AJ found that
complainant had failed to show that she was not selected as a result of
her race, sex, or prior EEO activity.
CONTENTIONS ON APPEAL
The record reveals that complainant submitted her brief late following a
request for an extension from the Office of Operations (OFO). Complainant
requested an extension to submit her supporting materials. OFO granted
the extension in a November 13, 2007 letter to complainant. OFO gave
complainant until December 12, 2007 to submit her materials. Complainant
was advised that "no further extensions of time would be granted."
Complainant did not submit her materials until January 16, 2008.
The agency requests that this untimely information not be considered.
Upon review, the Commission agrees that complainant has not set forth any
reasonable arguments as to why this information should be considered in
light of the directive to submit any additional information by December
12, 2007. Accordingly, the information will not be considered.
STANDARD OF REVIEW
AJ Decision without a Hearing
The standard of review in rendering this appellate decision is de
novo, i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision without
a hearing, in part, on this record. The Commission's regulations allow
an AJ to issue a decision without a hearing when s/he finds that there
are no genuine issues of material fact. 29 C.F.R. � 1614.109(g). This
regulation is patterned after the summary judgment procedure in Rule 56
of the 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). The AJ may properly issue a
decision without a hearing only upon a determination that the record
has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 0120024206 (July 11, 2003).
We find that the AJ's determination to issue a decision without a hearing
(summary judgment) with regard to Issues 1 though 6 was appropriate, as
no genuine issue of material fact or question of credibility regarding
these issu4es remained to be resolved at a hearing.
AJ Decision Following a Hearing
Regarding Issue 7, pursuant to 29 C.F.R. � 1614.405(a), all post-hearing
factual findings by an AJ will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as "such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding. See
Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held. An AJ's credibility determination based on
the demeanor of a witness or on the tone of voice of a witness will be
accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable
fact finder would not credit it. See EEOC Management Directive 110,
Chapter 9, � VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
The Commission finds with respect to issues 1 through 6 that, even
if we assume arguendo that complainant established a prima facie case
of discrimination as to all bases, the agency articulated legitimate,
nondiscriminatory reasons for its actions as set forth above. We find
that complainant failed to show that these articulated reasons were
pretext for discrimination. Moreover, we find that complainant failed
to establish that she was subjected to a hostile work environment
because, even if we consider all the incidents involved in this case
as a whole, we find the incidents complained of were not severe or
pervasive enough to establish a hostile work environment. See Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997), citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)
(harassment is actionable if it is sufficiently severe or pervasive to
alter the conditions of the complainant's employment). Accordingly we
find that the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
Further, with respect to the nonselection, the Commission finds that
complainant failed to establish her claim of discrimination. We find
that, even if we assume that complainant established a prima facie case
as to all bases, the agency has articulated legitimate, nondiscriminatory
reasons for its actions; namely, that it selected a candidate that it
deemed more qualified than complainant. We find that the record reveals
that the selectee was selected for the position based on his grade level,
excellent speaking ability, and technical knowledge of the programs.
While it is noted that complainant was a subject matter expert as to
one facet of the program, the record reveals that there were concerns
about complainant's ability to get along with others, as it was indicated
that she was difficult to work with; further, unlike the selectee, she
could not have been laterally transferred to the position. We find that
complainant did not show that her qualifications were clearly superior
to those of the selectee. The Commission notes that in Ash v. Tyson
Foods, Inc., 546 U.S. 454 (2006), the Court held that, to infer evidence
of pretext from comparative qualifications, complainant must show (1)
that the disparities between the successful applicant's and her own
qualifications were "of such weight and significance that no reasonable
person, in the exercise of impartial judgment, could have chosen the
candidate selected over the plaintiff" (Cooper v. Southern Co., 390
F.3d 695, 732 (2004)); or (2) that [complainant's] qualifications are
'clearly superior' to those of the selectee (Raad v. Fairbanks North
Star Borough School Dist., 323 F.3d 1185, 1194 (9th Cir. 2003)); or (3)
that "a reasonable employer would have found the [complainant] to be
significantly better qualified for the job," along with other evidence
(Aka v. Washington Hospital Center, 156 F.3d 1284, 1294 (C.A.D.C. 1998)
(en banc)). Therefore, we find that complainant has not demonstrated
that her non-selection was the result of unlawful discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find
that complainant has failed to demonstrate that she was subjected to
a hostile work environment and discrimination based on her race, sex,
or in reprisal for prior EEO activity. Accordingly, the agency's final
order finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
June 11, 2010
Date
2
0120080280
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120080280