Kristle L.,1 Complainant,v.Dr. Benjamin S. Carson, Sr., M.D., Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Jul 13, 2017

0120161633 (E.E.O.C. Jul. 13, 2017)

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

Kristle L.,1
Complainant,

v.

Dr. Benjamin S. Carson, Sr., M.D.,
Secretary,
Department of Housing and Urban Development,
Agency.

Appeal No. 0120161633

Hearing No. 460-2013-00046X

Agency No. HUD-00043-2012

DECISION

On April 5, 2016, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s February 24, 2016, 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. and 29 U.S.C. § 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For
the following reasons, the Commission AFFIRMS the Agency’s final order finding no
discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Program Assistant,
GS-07, at the Agency’s Office of Public Indian Housing (PIH) in Houston, Texas.
Complainant’s first level supervisor was the Director of PIH.

On April 16, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated
against her and subjected her to a hostile work environment on the bases of race (African
American), color (dark complexion), sex (female), age (65), and in reprisal for prior EEO
activity.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The AJ
assigned to the case granted the Agency’s motion for a decision without a hearing and issued a
decision without a hearing on January 14, 2016.

In her decision, the AJ noted that Complainant claimed that her Coworker (a Public Housing
Revitalization Specialist), “stares and glares at [her] in an intimidating way.” The AJ noted
Complainant alleged that on December 1, 2010, the Coworker exhibited “bizarre behavior.” The
AJ noted that the Director sent an electronic mail message to Complainant requesting “witnesses,
recordings” of her allegations. The AJ noted that on December 2, 2010, Complainant responded
to the Director, “I do not want to get other staff members involve[d] in this issue.”

The AJ noted that Complainant alleged the Coworker glared at her on June 8, 2011 and June 29,
2011; and “unnecessarily comes to my desk space.” Complainant also alleged that the Coworker
walked by her when she was working at the Front Desk on December 22, 2010, January 5, 2011,
January 26, 2011 (twice), April 27, 2011, June 15, 2011, July 6, 2011, July 13, 2011, August 28,
2012, and August 29, 2012. Complainant alleged that the Coworker made noise as he walked by
her desk on April 14, 2011, May 17, 2011, and July 22, 2011. Complainant alleged that the
Coworker “popped his fingers” as he passed her desk on March 31, 2011, and June 22, 2011.
Complainant claimed that the Coworker hit a metal cabinet while passing her desk on May 17,
2011, July 8, 2011, October 7, 2011, October 21, 2011, October 31, 2011, November 15, 2011,
November 21, 2011, November 29, 2011, and December 6, 2011. Complainant also stated that
the Coworker and “other unknown employees … have falsely alleged that I have been leaving
work before my time is up and that I have been getting to work late.” The AJ noted Complainant
was also the subject of complaints made by the Coworker. Specifically, on April 12, 2012, the
Coworker complained to the Director that Complainant almost collided into him in the hallway,
stood close by him, and taunted him by laughing.

The AJ noted that with the assistance from Employee/Labor Relations, the Director interviewed
Complainant and the Coworker. The Director also interviewed other PIH employees. The
Director stated that no one witnessed the Coworker’s alleged behavior.

The AJ noted that in her affidavit, Complainant claimed that Person 1, Person 2, Person 3,
Person 4, and Person 5 witnessed the Coworker harassing her, staring at Complainant, and
“deliberately passing by [her] desk several times.” The AJ noted that Person 3 and Person 4 both
denied witnessing anything of the kind. The AJ noted that Person 1 (a Union Official) was the
only witness that provided a statement helpful to Complainant. The AJ noted that Person 1
stated she saw one incident where the Coworker stared at Complainant.

The AJ found that even if the allegations raised are assumed true, the alleged acts were not
sufficiently severe to rise to the level of creating a hostile work environment. Rather, the AJ
noted that record was undisputed that discord developed equally between Complainant and the
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Coworker due to a disagreement over a union election. The AJ determined that while conflict
existed, it was not based on a protected category.

Additionally, the AJ noted that in her response to the Agency’s motion for summary judgment,
Complainant indicated that her supervisor and the EEO investigator failed to speak to important
witnesses. The AJ noted Complainant also pointed out that the Coworker admitted he would
make a loud noise in his office by placing a coffee cup on top of the file cabinets next to
Complainant’s cubicle. However, the AJ determined Complainant failed to raise a genuine issue
of material fact regarding a nexus between the Coworker’s actions and her protected categories.
The AJ noted there were no statements, jokes, comments, or epithets made by the Coworker
which were related to her protected categories. Moreover, the AJ noted that Complainant, the
Coworker, and several witnesses described a long-term personality conflict between the two
resulting from a dispute over a union election in 2010. The AJ determined that other than bare
assertions, self-serving statements, and conclusory allegations, there was no support for her
claim.

The Agency subsequently issued a final order dated February 24, 2016. The Agency’s final
order fully implemented the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination or harassment as alleged.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “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”).

Upon review of the record we find that the AJ properly found that the present complaint was
suitable for summary judgment. We note that the record is adequately developed and there are
no disputes of material fact. We note that Complainant does not challenge the definition of the
identified incidents of alleged harassment by the Coworker as described in the AJ’s decision.

In the present case we find Complainant failed to show that the incidents cited were sufficiently
severe or pervasive to create a hostile work environment. Moreover, other than Complainant’s
bare assertions, we find there is no evidence linking the identified incidents to her race, color,
sex, age, or protected EEO activity. Upon review, we find Complainant failed to establish that
the actions by the Coworker or the Director constituted a hostile work environment based on any
of her protected categories.

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CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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
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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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

July 13, 2017
Date