[Redacted], Alisa M., 1 Complainant,v.Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Oct 27, 2022

Appeal No. 2021003692 (E.E.O.C. Oct. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alisa M.,1 Complainant, v. Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency. Appeal No. 2021003692 Hearing No. 570-2019-01406X Agency No. HUD-00158-2018 DECISION Complainant filed a timely appeal pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 29, 2021, 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 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. At the time of events giving rise to this complaint, Complainant worked as a Budget Analyst, GS-0560-12, at the Agency’s Office of Budget and Field Resources, Salaries and Expenses, in Washington, D.C. From January 2018, the Acting Director, was Complainant’s first-level supervisor (S1). From January 8, 2018 to August 2018, the former Deputy Budget Office Director (now a Senior Advisor), was Complainant’s second-level supervisor (S2). The Budget Office Director was Complainant’s third-level supervisor (S3). A Program Analyst was the Program Area Training Coordinator (Training Coordinator). On October 22, 2018, 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 (Brown/Light Skin), sex (Female), and age (52) when: 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. 2021003692 2 a. Complainant’s training request for Excel Intermediate was disapproved on August 22, 2018, which affected Complainant’s chances of upward mobility as a Budget Analyst; b. Complainant was subjected to a hostile work environment when her training requests were disapproved from December 2017 to August 2018, which affected Complainant’s chances of upward mobility as a Budget Analyst. On August 20, 2017, Complainant received a promotion to the GS-12 level, the top of her career ladder. From the time of the instant complaint to at least March 28, 2019, there were no vacancy announcements posted for the Office of Budget and Field Resources at the GS-0560-13 grade. Complainant submitted a variety of training requests from May 2018 through August 2018. Complainant submitted a training request on May 17, 2018, which was denied by S1 with the comment “per leadership staff training requests are on hold until further notice.” After that, Complainant submitted various training requests for analytics boot camp training, budget formulation and intermediate excel training. Some of the training requests were disapproved while some of the trainings were canceled. On July 24, 2018, S1 approved Complainant’s training request for August 27, 2018 Excel Intermediate. S1 then passed along the training request to S3. On August 22, 2018, S3 emailed Training Coordinator to let her know they could not find a venue for group training and that she had approved a few individual training requests instead. S3 then approved Complainant’s Excel Intermediate’s request and forwarded the request to Training Coordinator. On August 22, 2018, Training Coordinator disapproved Complainant’s training request for Excel Intermediate. On Complainant’s SF-182 training request, Training Coordinator stated “there is not enough time for this request to be processed by the start of August 27, 2018.” The Training Coordinator based the disapproval on SF-182 training processing timeframes established by the Office of the Deputy Assistant Secretary for Operations. Specifically, the Agency’s policy stated that “the Program Training Coordinator must submit a complete and accurate SF-182 no later than 15 business days in advance of the training, or the registration close date, whichever is earlier.” The Training Coordinator received Complainant’s request on August 22, 2018, which was five days prior to the start of the training and would not have provided enough time to process it before the start date of August 27, 2018. Complainant alleged that she lost upward mobility when she was denied the opportunity to take the Excel Intermediate training. Complainant applied for an external GS-13 position which required Excel Intermediate knowledge. Complainant said she did not have the requisite specialized skill experience for the position because she was denied the Excel Intermediate training. 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 timely requested a hearing. The AJ assigned to the case issued a summary judgment decision in favor of the Agency. 2021003692 3 In the decision, the AJ determined that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to Claim (a), S1 explained that all Budget Division directors were told not to approve training requests because S3 wanted to schedule a group training. This was communicated to Complainant, who asserted she should be able to take the training. Complainant resubmitted the request to S1, who approved the request and forwarded it to S3 in July 2018. S3 approved Complainant’s Excel Intermediate’s training request after she could not find a venue for group training and informed the Training Coordinator that instead, she approved a few individual training requests. Complainant’s Excel Intermediate training request was one of those approved. Training Coordinator disapproved the request because the training was due to commence in five days and she did not have enough time to process it. S3 noted that all budget employees had Excel skill and that Complainant has taken two Excel courses since she was hired. S3 also stated Complainant represented to her she had expertise in Excel. Further, the AJ noted that while Excel Intermediate may have been a job requirement of the external position, Complainant failed to present corroborating evidence that she lost the job opportunity solely because she had not taken Excel Intermediate. The AJ noted that S3 approved a co-worker’s (C1) training request on the same day as Complainant’s training request - August 22, 2018. However, Training Coordinator approved the training request because the training was scheduled for September 2018 and she was able to timely process the request. As to another co-worker (C2), S3 denied his request to attend an advanced leadership class on August 6, 2018. Regarding claim (b), the AJ noted that there were six identified denied training requests in the record from December 2017 to August 2018. The record showed Complainant’s several training requests were disapproved because it was during the period S3 put training on hold for all employees. Additionally, the record showed that one training request was disapproved because the class was not within the scope of Complainant’s current duties. The AJ concluded these training denials and any resulting loss of upward mobility opportunity was not sufficiently severe or pervasive to constitute a hostile work environment nor was there any evidence demonstrating any discriminatory animus. As a result, the AJ found that Complainant was not subjected to discrimination or a hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 2021003692 4 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 2021003692 5 In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (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. 2021003692 6 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 October 27, 2022 Date