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

Equal Employment Opportunity CommissionJun 11, 2010
0120080280 (E.E.O.C. Jun. 11, 2010)

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

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0120080280

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120080280