U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Constance M. Linzy, a/k/a,
Blanca B.,1
Complainant,
v.
Dr. Benjamin S. Carson, Sr., M.D.,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120172097
Hearing No. 570-2015-00098X
Agency No. HUD-00001-2013
DECISION
On May 24, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s April 27, 2017, final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 an Office Assistant,
GS-0303-8 at the Agency’s facility in Washington, D.C.2
On December 3, 2012, Complainant filed an EEO complaint alleging that the Agency subjected
her to a hostile work environment on the basis of disability when:
A. On October 5, 2012, Complainant’s second line supervisor blocked her path and,
in a hostile tone inquired about who she was going to meet as she prepared to go
to her initial meeting with the EEO Counselor;
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 Complainant’s position is also referred to as a Correspondence Assistant in the record.
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B. On October 5, 2012, Complainant’s second line supervisor pressed her body up
against Complainant’s with extreme force and stated, “Oh what! What! You are
attacking me, what you are attacking me,” and pressed against her breast to breast
in a way that made Complainant feel she was being sexually harassed;
C. During the beginning of September 2012, Complainant’s supervisor, directed her
to “play” with a scanner for an entire month to “see how good you could do;”
D. During September 2012, Complainant’s supervisor directed her to retrieve
correspondence from another office. After she returned to her office with two
Freedom of Information Act requests, her supervisor accompanied her back to the
other office as if she were incapable of doing so on her own and together they
retrieved the correspondence; and
E. Complainant’s supervisor removed a log book that she used for the purpose of
providing customer service.
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
issued a decision without a hearing on April 18, 2017. In her decision, the AJ found the record
was adequately developed, notwithstanding Complainant’s failure to participate in the
investigation and alleged failure to respond to the Agency’s discovery request. The AJ noted
Complainant did not file an opposition to the Agency’s motion for a decision without a hearing
within the applicable deadline. The AJ found Complainant failed to establish that she was
subjected to a hostile work environment.
The Agency subsequently issued a final order on April 27, 2017. The Agency fully implemented
the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination
as alleged.
On appeal, Complainant reiterates that on October 5, 2012, the Director blocked her path and
physically assaulted her when she bumped Complainant with force. Complainant claims that the
Agency conducted an investigation but did not take any statement from her. Complainant notes
that two contract investigators were assigned to her case and she states that she requested a face
to face meeting but neither investigator ever contacted her or gave her the opportunity to
complete an affidavit. Accompanying her appeal Complainant submitted emails and statements
from witnesses in support of her hostile work environment claim.
In response, the Agency argues Complainant’s newly submitted evidence should be stricken and
not considered as part of the record. The Agency also notes that Complainant implies that the
EEO investigation did not include her statement due to the investigators not contacting her, not
meeting with her for a face to face meeting, and not giving her an opportunity to complete an
affidavit. The Agency states Complainant’s contentions are not supported by the record.
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Rather, the Agency states the record shows that Complainant had several opportunities to meet
with investigators and to provide a response to the investigation. Further, the Agency claims the
AJ properly issued a decision without a hearing.
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 EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9,
§ VI.A. (Nov. 9, 1999) (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 on appeal Complainant does not challenge the
AJ’s definition of the basis or claim raised in her complaint. We note that the record is
adequately developed and there are no disputes of material fact. Despite Complainant’s
contention that the investigation was conducted without her input, the record reveals
Complainant was afforded the opportunity to participate in the investigation via a face to face
meeting; however, she and her representative failed to attend the scheduled meeting.
Additionally, we note the Agency afforded Complainant the opportunity to provide a rebuttal to
the completed investigation which she failed to do.
We note that for the first time on appeal Complainant submitted various emails and statements
from witnesses she claimed support her hostile work environment claim. These statements were
not part of the record available to the AJ when considering the Agency's motion for a decision
without a hearing. As a general rule, no new evidence will be considered on appeal absent an
affirmative showing that the evidence was not reasonably available prior to or during the
investigation or during the hearing process. See Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VI.A.3 (Aug. 5, 2015).
Complainant offered no explanation why such statements and emails were not previously
available during the investigative or hearing processes. As such, any new evidence submitted
will not be considered.
With regard to the incidents described in (A) and (B), we note that both the accused supervisor
and a witness stated that Complainant instigated the physical contact, not the supervisor.
Complainant failed to submit any sworn testimony – including her own - supporting her version
of the incident. With regard to claims (C), (D), and (E), we find that those incidents are not
sufficiently severe or pervasive to constitute unlawful harassment. Moreover, other than
Complainant’s bare assertions we find there is no evidence linking any of the identified incidents
to her claimed disability. Upon review, we find Complainant failed to establish that the actions
alleged constituted a hostile work environment based on her claimed disability.
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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.
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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
September 7, 2017
Date
