0120121726
08-17-2012
Jackie Williams, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Jackie Williams,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120121726
Hearing No. 570-2010-01040X
Agency No. HUD-00097-2009
DECISION
On March 1, 2012, Complainant filed an appeal from the Agency's February 9, 2012, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Director at the Agency's Office of Rural Housing and Economic Development facility in Washington, D.C. The record indicated that Complainant has been in her position since 2001. Complainant alleged that she has been denied staff and resources needed to meet its goals. She also asserted that the General Deputy Assistant Secretary (White, Male) and the Associate Deputy Assistant Secretary (White, Male) subjected her to harassment.
On May 15, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when she was subjected to harassment. In support of her claim of harassment, Complainant indicated that the following events occurred:
1. On April 3, 2009, Complainant was subjected to harassment and a hostile work environment when the General Deputy Assistant Secretary entered her office after a staff meeting, in a threatening and unprofessional manner
2. She was subjected to harassment and a hostile work environment when she was unable to effectively perform the duties of her position as a Director due to under staffing and resources, whereas other directors within the organization are provided appropriate staffing and resources to perform the duties of their positions
Complainant also alleged that following events not only constituted her claim of harassment based on her race and sex but also in retaliation for filing the instant complaint:
3. On June 4, 2009, the General Deputy Assistant Secretary sent an e-mail to the Office of General Counsel in regards to an assignment of work for her staff.
4. On October 26, 2009, the Associate Deputy Assistant Secretary issued Complainant a "Warning Memorandum" dated October 26, 2009 and demanded her immediate signature
5. On November 2, 2009, the Associate Deputy Assistant Secretary hand-delivered a hard copy "Reprimand Memorandum" dated October 30, 2009, addressed to her from him, on an unscheduled visit.
6. On November 3, 2009, the Associate Deputy Assistant Secretary hand-delivered a hard copy memorandum with the subject, "Employee Grievance - Step 1", regarding the immediate restoration of telework for Complainant's employees. The Memorandum was dated October 29, 2009, and was delivered to Complainant on an unscheduled visit.
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). Complainant timely requested a hearing. The Agency filed its motion to dismiss, or in the alternative, motion for summary judgment. The Agency asserted that Complainant failed to state a claim of harassment. Further, in the event the AJ found that Complainant stated a claim of harassment, the Agency argued that Complainant failed to establish that she was actually subjected to a hostile work environment. Complainant responded to the motion claiming that she had been subjected to intimidation by both the General Deputy Assistant Secretary and the Associate Deputy Assistant Secretary. Further, she indicated that the Agency did not have many African-American female Directors and was not given the resources for her unit to succeed.
After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on January 31, 2012. The AJ found that Complainant failed to state a claim of harassment. The AJ noted that based on Complainant's explanations and interpretations of the events that Complainant failed to show that she was subjected to harassment or that Management did anything wrong. The AJ noted that Complainant's descriptions of the events established her own instances of insubordination justifying the reactions of both the General Deputy Assistant Secretary and the Associate Deputy Assistant Secretary. Therefore, the AJ concluded that Complainant has not raised events sufficiently severe or pervasive enough to establish that she was subjected to harassment. The Agency implemented the AJ's decision.
This appeal followed. On appeal, Complainant provided the breakdown by race, sex, and education level of Management within her office at the Agency. She noted that after she filed the formal complaint, Management conducted an internal investigation into the alleged hostile work environment and found that her claims were not substantiated. Further, as a result of Complainant's compliant, she claimed that she would not be promoted to an SES position and received unjustified negative personnel memoranda in retaliation for her protected activity. As such, Complainant asserted that the General Deputy Assistant Secretary and the Associate Deputy Assistant Secretary subjected her to a hostile work environment. The Agency requested that the Commission affirm its decision implementing the AJ's finding of no discrimination.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Therefore, the Commission turns to Complainant's claim of harassment. It is well-settled that harassment based on an individual's race, sex and protected activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in those classes and her prior EEO activity; (3) the harassment complained of was based on race, sex, and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Upon review of the record, we find that Complainant has not shown that the alleged events occurred because of her protected bases and/or her protected EEO activity. We note that Complainant indicated that she is one of few African-American or female directors within the Agency. However that evidence alone does not show that the alleged incidents occurred because of Complainant's protected bases.
To the extent Complainant alleged retaliatory harassment; we find that Complainant had not shown that the events raised in (3)-(6) occurred because of her protected EEO activity. In event (3), the General Deputy Assistant Secretary averred that he contacted the Office of General Counsel to see if employees would work on a particular assignment from home without violating Agency policy. As to the memoranda raised in (4) and (5), the Associate Deputy Assistant Secretary averred that he issued them to Complainant based on her failure on her part to rescind disciplinary action she took against her employee despite the Associate's orders. When she continued to refuse to follow the Associate Deputy Assistant Secretary's orders, he issued the second memorandum raised in event (5). Finally, as to event (6), Complainant asserted that the Associate Deputy Assistant Secretary harassed her by delivering to her a copy of the Step 1 Grievance Decision which involved Complainant's employees who were denied telework.1 Therefore, based on the record as presented by Complainant, we find that she has not shown that the alleged events occurred because of her race, sex and/or protected EEO activity. As such, the AJ correctly determined that Complainant did not establish her prima facie case of harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's decision to implement the AJ's finding of no discrimination.
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.
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
August 17, 2012
__________________
Date
1 The Commission notes that Complainant raised the grievance decision as part of her claim of harassment. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised her challenges to actions which occurred during the grievance proceeding was at that proceeding itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the grievance process.
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0120121726
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121726