0120170273
05-25-2018
Virgina K.,1 Complainant, v. Dr. Benjamin S. Carson, Sr., M.D., Secretary, Department of Housing and Urban Development, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Virgina K.,1
Complainant,
v.
Dr. Benjamin S. Carson, Sr., M.D.,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120170273
Hearing No. 530-2011-00266X
Agency No. HUD000412010
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal, pursuant to 29 C.F.R. � 1614.403(a), 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Assistant, GS-07, at the Agency's Multi-Family Housing Hub in Columbus, Ohio.
On February 14, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (Black) and age when: (1) she was denied the opportunity to apply for the position of Project Manager, GS-08, posted in Vacancy Announcement HQ-09-CRS-0141S50. Complainant also alleged she was subjected to harassment on the basis of reprisal when: (2) she was issued a notice of suspension on September 27, 2010; and (3) in November 2009, she was issued an annual performance rating of "minimally satisfactory."
At the conclusion of the investigation into the complaint, 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 AJ assigned to the case determined that there were no genuine issues of material fact and issued a decision in favor of the Agency by summary judgment on September 27, 2016. The Agency did not issue a final Order, and the AJ's decision became the final decision.
The instant appeal followed without substantive comment.
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").
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. Complainant did not file any arguments on appeal, and thus has not pointed to any facts in dispute requiring a hearing.
For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Therefore, we find that the AJ properly issued a decision here by summary judgment.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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; 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, 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).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The record indicates Complainant applied for the Project Manager position, which was posted internally and externally, and there were 875 applicants. The Agency contracted with the Office of Personnel Management (OPM) to screen the applications and produce a Certificate of Eligibles. Complainant's application was screened by OPM and she was found not to be qualified for the position and her application was not forwarded to the selecting officials for further consideration. As such, she was not selected for the position.
As to Complainant's suspension, management was informed by an employee that Complainant had signed her name on a document without the employee's approval. Upon investigation, it was discovered that there were instances in which Complainant had signed documents authorizing the release of federal funds. Complainant did not have the authority to engage in that activity. As such, on September 27, 2010, Complainant was notified that she would be suspended for five days.
As to Complainant's appraisal, Complainant's supervisor (African American, Black, older than Complainant) stated that she received complaints about Complainant's work from others, and by the end of the appraisal year there were problems with her work performance. Complainant was placed on a performance improvement plan and, in 2010, she was rated fully satisfactory in three elements and outstanding in one.
We now turn to Complainant to establish that these explanations were pretext masking discrimination. Complainant did not provide any arguments on appeal. According to the record, Complainant basically felt that since she had been in the job since 2005 and had higher ratings in the past, her rating should not have been changed. As noted by the AJ, Complainant offered no evidence to support her discrimination claim. As such, we cannot find that Complainant has established that she was subjected to discrimination based on her race, color or age. Regarding her retaliation claim, even if Complainant could establish a prima facie case of reprisal, for the same reasons we find she did not prove sex discrimination, we conclude that the weight of the evidence does not establish that retaliatory animus played any role in the decision to suspend Complainant or reduce the rating on her appraisal.
To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself.
Here, as already concluded above, there is no evidence to support a finding that Complainant's protected bases played any role in her non-selection, suspension, or appraisal. Rather it was OPM that determined she was not qualified. It was her own actions of signing papers she was not authorized to sign that caused her suspension. And she has not disputed the problems with her work performance. Thus, she cannot prevail on a discriminatory harassment claim regarding these matters.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision to AFFIRM the Agency's final order, because the AJ's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
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 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
May 25, 2018
__________________
Date
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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