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

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2019005695 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Christeen H.,1 Complainant, v. Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency. Appeal No. 2019005695 Hearing No. 450-2018-00041X Agency No. HUD-00031-2017 DECISION On August 24, 2019,2 Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 17, 2019, 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. 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. 2 On appeal, Complainant noted that she received the Agency's final decision on July 25, 2019. The Agency did not provide documentation regarding delivery of the final decision, aside from providing the tracking number associated with the final decision package. It is the burden of an agency to have evidence or proof in support of its final decision. See Marshall v. Dep’t of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). Since the Agency did not contest the timeliness on appeal or provide documentation demonstrating delivery, we consider Complainant’s appeal timely. 2019005695 2 ISSUES PRESENTED The issues presented are whether the AJ erred when he did not to provide notice to Complainant of his intent to issue summary judgment; whether the Agency was entitled to summary judgment as a matter of law; and whether Complainant has shown by a preponderance of the evidence that the Agency subjected her to discrimination based on her race and sex, and in reprisal for prior protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Civil Rights Analyst at the Agency’s Office of Fair Housing and Equal Opportunity (FHEO) in Fort Worth, Texas. On March 7, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases3 of race (African-American), age (55) and reprisal for prior protected EEO activity when, on January 3, 2017, Complainant learned she was not selected for the Supervisory Equal Opportunity Specialist, GS-0360-13/14 Vacancy Announcement Numbers 16-HUD-945 and 16-HUD-1097P. The investigative record reflects the following pertinent matters relating to the subject claims. For the vacancy in question, a four-person selection panel was created. The panel consisted of the Director of the FHEO (P1, African American, over 40, EEO activity unknown), the Supervisor (P2, Caucasian, over 40, EEO activity unknown), the Director of Finance and Facilities Management (P3, race, age, and EEO activity unknown), and the Supervisory Management Analyst (P4, race, age, and EEO activity unknown)4. The responsible management official, the Regional Director of FHEO, (RMO, White, over 40, prior EEO activity) stated that, due to prior EEO complaints submitted against him by Complainant, he recused himself from the selection process. RMO stated that he only served to make the official selection based off the selection panel’s recommendation. RMO stated that Complainant was never referred to him for selection. P1 stated that the panel reviewed the candidates, ranked the top candidates, and submitted their determination to the selecting official, RMO. P1 stated that Complainant was considered but ultimately not referred as she was not as qualified. P1 stated that the selectees (S1 and S2) had strong backgrounds and were very well qualified. 3 Complainant listed disability as a basis in her informal complaint but did not include it in the formal complaint. 4 The EEO Investigator was unable to obtain affidavits from P3 and P4. 2019005695 3 For example, P1 stated that S1 previously supervised employees, closed complex and/or aged cases, and had a strong knowledge of fair housing laws. P1 stated that S2 was also very qualified. He stated that she had prior management experience, was an attorney who had worked on fair housing matters with Legal Aid, and had a strong knowledge of the civil rights laws that FHEO enforced. Comparatively, P1 stated that the panel felt Complainant lacked specific knowledge on some of the fair housing laws covered and lacked enforcement experience. P2 affirmed P1’s statements. P2 also noted that each candidate was ranked on a point system out of 80 points. S1 received 75 points, S2 received 62 points, and Complainant received 54 points. P2 noted that, in comparison to S1 and S2, Complainant’s experiences were not as robust. P1 and P2 noted that RMO had no influence in the selection process. Complainant asserted that she was the most qualified candidate and was discriminatorily passed over in favor of S1 and S2, who she asserted were pre-selected. Complainant alleged that RMO sabotaged her application by intentionally destroying her performance records so that she would be deemed ineligible on the Best Qualified Internal Roster. RMO stated that he selected S1 and S2 because they were recommended by the panel. 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. On June 12, 2019, the AJ assigned to the case issued a Notice of Intent to Issue Summary Judgment (Notice). The AJ sent this Notice to the parties via electronic mail. The AJ determined that there were no genuine disputes of material facts regarding Complainant’s claim. The AJ noted that the Agency chose S1 and S2 because they were better qualified, and Complainant failed to provide any evidence to support her assertions that the selections were discriminatory or retaliatory. The AJ stated that a review of Complainant’s qualifications did not determine that she was “plainly superior” to the selectees to warrant an inference of discriminatory motive. The AJ also noted that Complainant’s prior EEO activity was too remote in temporal proximity to infer any retaliatory motives on the part of RMO or the Agency. The AJ determined that summary judgment in favor of the Agency was appropriate. The AJ invited both parties to provide a brief that would demonstrate that a genuine issue of material fact was in dispute, and that summary judgment for the Agency was not appropriate. On July 3, 2019, the AJ issued his decision and order entering summary judgment for the Agency. This was mailed by regular mail to the parties. On July 17, 2019, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 2019005695 4 CONTENTIONS ON APPEAL On appeal, Complainant asserts that the AJ erred in his ruling. Specifically, Complainant asserts that it was inappropriate for the AJ to issue his June 12, 2019, Notice by email only. Complainant asserts that, had she received the Notice by regular mail, she could have appropriately responded. Complainant asserts that, because she never received the AJ’s Notice via email, she only learned of the AJ’s decision when she received his July 3, 2019, decision. Complainant also states that she was never given a chance to rebut the Agency’s Motion for Summary Judgment (Motion) because the Agency never submitted a copy of its Motion for her to review. Complainant asserts that the Agency should be sanctioned for misrepresenting to the AJ that she had received its Motion when she clearly had not. Complainant asserts that the Agency sent her an email with a fake United States Postal Service Certified Mail Number stating that it mailed the Motion to Complainant, but that it was returned to the Agency’s office. Complainant asserts that, if given a hearing, she can prove the Agency lied about sending the Motion. Concerning the merits of her claim, Complainant reiterated arguments that she previously made. For example, she reiterated how RMO discriminated and retaliated against her by not selecting her for the position at issue. Complainant asserts that RMO has a history of passing her over for promotions and claims that he was discriminatorily pre-selecting the selectees over her. Complainant also asserts that RMO clearly was resentful towards her for winning a Step 3 Union Grievance against him on March 23, 2012. The Agency did not provide an appellate brief. STANDARD OF REVIEW 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”). 2019005695 5 ANALYSIS AND FINDINGS Complaints Processing We note that Complainant raises concerns with the processing of her complaint. Specifically, Complainant claims that it was inappropriate of the AJ to email her the June 12, 2019, Notice of Intent to Issue Summary Judgment. Complainant asserts that she did not receive the email and, therefore, was never given a chance to properly respond. Complainant argues that, because of this, the matter should be remanded for a hearing. We have found that, while an AJ is entitled to render summary judgment findings, sua sponte, the AJ must first give notice to the parties and provide them with an opportunity to respond. See 29 C.F.R. § 1614.109(g)(3); Complainant v. Dep’t of Commerce, EEOC Appeal No. 01A04453 (March 14, 2002). We agree with Complainant and find that the AJ improperly issued summary judgment on an issue without first providing Complainant with notice or an opportunity to respond. However, on appeal complainant has failed to persuade the Commission that there are genuine issues of material facts in dispute with respect to her complaint. Complainant provided conclusory arguments that she was discriminated and retaliated against, but aside from statements she has previously made, Complainant does not offer any new arguments. Moreover, Complainant does not identify how the AJ erred in his analysis when he issued summary judgment, other than to argue that it was error for him to email his Notice rather than send it by regular mail. Accordingly, we find that the AJ’s error was harmless and does not warrant a remand for a hearing. Regarding Complainant’s request to sanction the Agency for allegedly misrepresenting to the AJ that she had received a copy of the Agency’s Motion for Summary Judgment, we find her argument without merit. The record indicates that the AJ sua sponte determined that the matter before him may warrant summary judgment, and therefore issued his intent to do so. There is no indication that the Agency here intentionally misled the AJ in this matter. Upon review of the entire record, the Commission is not persuaded that the events warrant any sanctions upon the Agency or a remand of the matter for a hearing. Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. 2019005695 6 At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We find that summary judgment was appropriate, and the Agency was entitled to a grant of summary judgment as a matter of law. Having considered Complainant's arguments, we find that there exists no genuine issue of material fact; the record is adequately developed; and no findings of fact need be made by weighing conflicting evidence or assessing witness credibility. Disparate Treatment Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). To establish a prima facie case of discrimination, a complainant must show that: (1) she is a member of a protected group; (2) she is qualified for the position; (3) she suffered an adverse employment action; and, (4) the circumstances give rise to an inference of discrimination. We note that, although a complainant bears the burden of establishing a “prima facie” case, Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981), the requirements are “minimal,” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993), and the complainant’s burden is “not onerous.” Burdine, 450 U.S. at 253. For her claim of reprisal, Complainant must show that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Even if we assume, arguendo, that Complainant established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its action. Specifically, the Agency stated that Complainant was not as qualified as the selectees. 2019005695 7 Here, the record demonstrated that Complainant was not rated high enough to warrant referral to the selecting official, RMO. P2 noted that Complainant had only one year of programs and compliance experience compared to the selectees, who had extensive relevant experience. For example, the record noted that S2 was an attorney with relevant and extensive program compliance experience as demonstrated by her FHEO Denver and Oklahoma office work. P2 noted that S2’s experience included serving as a team lead and team member on numerous Title VI, Section 504, Americans with Disabilities Act, and other compliance reviews. Overall, S1 and S2, had more management and compliance experience that made them better qualified. In non-selection cases such as the one now before us, Complainant can demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the selectees. Hung P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Other indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Despite her arguments, we determine that Complainant has failed to show that the reasons provided were pretext for discrimination. Complainant argued that she had better, qualifying experiences; however, she failed to demonstrate such a distinction. Furthermore, Complainant should bear in mind that agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Complainant v. Dept. of Homeland Sec., EEOC Appeal No. 0120141478 (July 31, 2015). Additionally, despite Complainant’s contentions, there is no indication of pre- selection occurring in the matter before us; however, if there were, agencies are allowed to preselect a candidate as long as the preselection is not premised upon a prohibited basis. Complainant v. Dept. of Homeland Sec., EEOC Appeal No. 0120132858 (Mar. 9, 2015). Regarding Complainant’s retaliation claim, the record demonstrated that Complainant has participated in EEO claims against RMO in 2012 and 2013. The AJ determined that Complainant’s prior EEO activity against the RMO was too remote in temporal proximity to infer any retaliatory motives on RMO’s part. We disagree that length of time necessarily invalidates a retaliation claim. However, the record demonstrates that RMO recused himself from the selection portion of the process and made his decision based on the recommendations of the panel. The panel here did not recommend Complainant, and her application was never forwarded to RMO. Based on the record, we ultimately agree with the AJ that Complainant did not sufficiently demonstrate that there was a nexus between the protected activity and her non- selection. 2019005695 8 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final order implementing the AJ’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. In the absence of a legible postmark, 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. 2019005695 9 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. 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, Director Office of Federal Operations May 24, 2021 Date