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

Equal Employment Opportunity Commission

Apr 19, 2019

2019000944 (E.E.O.C. Apr. 19, 2019)

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

Genie S.,1
Complainant,

v.

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

Appeal No. 2019000944

Hearing No. 410-2018-00371X

Agency No. HUD-00130-2017

DECISION

On October 23, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s November 2, 2018 final order concerning an equal employment opportunity (EEO)
complaint claiming 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., Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 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.

BACKGROUND

During the period at issue, Complainant worked as a Senior Single-Family Housing Specialist,
GS-13/9 at the Agency’s Quality Assurance Division, Atlanta Home Ownership Center in
Atlanta, Georgia.

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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On October 27, 2017, Complainant filed the instant formal complaint. Complainant claimed that
she was subjected to harassment/a hostile work environment based on color (dark skinned),
disability, 2 age (over 40), and in reprisal for prior EEO activity when:

a. as recently as June 12, 2017 through June 19, 2017, she was excluded from serving as
Acting Branch Chief;

b. on or around June 21, 2017, management made derogatory remarks concerning her work
to representatives in Headquarters and her immediate supervisor, thus prompting
Complainant’s exclusion from participation on a project;

c. on August 30, 2017, her name was omitted in the 3rd Quarter Newsletter for
Complainant’s accomplishments on the Loan Review System;

d. since engaging in protected activity, she was removed from participation as a Team
Leader for organization reviews;

e. on March 15, 2017, she was notified that she was being excluded from servicing reviews
and serving as a Team Leader;

f. since engaging in protected activity, the Director greets and identifies employees on
Complainant’s aisle but does not speak to her;

g. since engaging in protected activity, she was not given full credit for the completed
project with the Mortgage Review Board in Headquarters;

h. as recently as November 15, 2017, she was not given an award, although other employees
were given awards for less substantial work; and

i. on August 22, 217, she was notified that she was not selected for the position of Quality
Assurance Division (QAD) Supervisor Single-Family Housing Specialist, GS-14,
advertised under Announcement Number No: 17-HUD-822.

After an investigation, Complainant was provided a copy of the investigative file and requested a
hearing before an EEOC Administrative Judge (AJ). On October 2, 2018, the AJ issued a
decision by summary judgment in favor of the Agency, concluding no discrimination was
established. The Agency issued its final order, adopting the AJ’s decision.

The instant appeal followed. Complainant did not submit a brief on appeal.

2 Complainant identified her disabilities as neck and lower back problems and bilateral
trochanteric bursitis. For purposes of this analysis, we assume, without so finding, that
Complainant was a qualified individual with a disability.

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ANALYSIS AND FINDINGS

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
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).

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 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.

To prove her case of discriminatory harassment/hostile work environment, 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 –
in this case, color, disability, age and/or retaliatory animus. Only if Complainant establishes
both of those elements – hostility and motive – will the question of Agency liability present
itself. Here, the AJ properly found that the evidence of record did not establish that Complainant
was subjected to harassment based on color, disability, age and prior protected activity.

Claim a

Complainant alleged that from June 12, 2017 through June 19, 2017, she was excluded by the
Branch Chief from serving as Acting Branch Chief.

The Director, Quality Assurance Division (Black, over 40, unknown disability/prior protected
activity) explained there was no need for an Acting Branch Chief from June 12, 2017 to June 19,
2017 “as the Branch Chief was in the office during that period.”

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The Branch Chief (Black, unknown disability, over 40, no prior protected activity) stated that
during the relevant period she was not absent from the office at that time and “did not need an
Acting Branch Chief.”

Claim b

Complainant asserted that on or around June 21, 2017, management made derogatory remarks
concerning her work to representatives in Headquarters and her immediate supervisor, thus
prompting Complainant’s exclusion from participation on a project.

The Branch Chief stated that she was not aware of any management official making derogatory
remarks concerning Complainant.

Claim c

Complainant claimed that on August 30, 2017, her name was omitted in the 3rd Quarter
Newsletter for Complainant’s accomplishments on the Loan Review System.

The Branch Chief stated that she submitted Complainant’s name to the editor of the newsletter
“for a ‘KUDOS’ recognition in the 3rd Quarter Newsletter. After I noticed her name and the
names of other individuals in our Division did not appear in the 3rd Quarter Newsletter, I
immediately contacted one of the editors of the Newsletter and informed him that the
Complainant’s name was left out in error. The Editor apologized and stated he would include
Complainant’s name in the next Newsletter edition. Her name appeared in the 4th Quarter
Newsletter.”

Claim d

Complainant asserted that on since engaging in protected activity, she was removed from
participation as a Team Leader for origination reviews.

The Director explained that a pilot program was put in place under a new system “in which
Headquarters asked me to choose three ‘Batch Owners’ to monitor pilot reviews. I chose the
three most efficient Specialists out of the twenty-five Specialists who completed the reviews
under the new system.” Complainant was not one of the “Batch Owners.”

Complainant asserted that the manner in which the Lender Review System was distributing cases
caused her to not receive as many cases as other employees. The Director, however, asserted
that Complainant did not bring this issue to his attention. The Director further stated that he was
told “generally that the system rewards efficiency. If a Specialist completes reviews faster, then
they will be assigned more cases overall.”

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The Branch Chief stated at that time “we did not have any Team Leaders for Origination
Reviews in 2017. Our Director, [Director] chose three Specialists to be ‘Batch Owners’ of a
pilot program. I did not have any input in choosing the three ‘Batch Owners.’”

Claim e

Complainant alleged that on March 15, 2017, she was notified that she was being excluded from
servicing reviews and serving as a Team Leader.

The Director stated that Complainant was not excluded from servicing reviews and serving as a
Team Leader “because Headquarters cancelled all service reviews in 2017.”

The Branch Chief stated that on September 29, 2017, she gave Complainant an award for a
special project. The Branch Chief also stated that she gave Complainant a “Hot Stuff” award for
her work on Customer Service document and a ‘KUDOS’ recognition in the Quarterly
Newsletter. The Branch Chief stated, however, she had no participation in the Director’s
decision to give a “Time Off Award” to several employees.

Claim f

Complainant alleged that since engaging in protected activity, the Director greets and identifies
employees on Complainant’s aisle but does not speak to her.

The Director stated that he does not recall this occurring, and that he was not aware of a
grievance or appeal being filed over the issue.

Claim g

Complainant asserted that since engaging in protected activity, she was not given full credit for
the completed project with the Mortgage Review Board in Headquarters.

The Director explained that he prepared the annual which included the results of the Mortgage
Review Board. The Director also stated that the report noted “Division wide achievements and
did not include individual accomplishments.”

Claim h

Complainant claimed that as recently as November 15, 2017, she was not given an award when
other employees were given awards for less substantial work.

The Director acknowledged that several employees were awarded a time off award for their
involvement with an office event. The Director noted while Complainant did not receive a time
off award for her work on the Customer Service Quality Control document, she received a “Hot
Stuff” award and was given “KUDOS” in the 4th Quarter Newsletter. Furthermore, the Director
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stated that other members of Customer Service IQC team were not given a time off award for
their work on the customer service project.

The Branch Chief stated that on September 29, 2017, she gave Complainant an award for a
special project. The Branch Chief also stated that she gave Complainant a “Hot Stuff” award for
her work on Customer Service document and a ‘KUDOS’ recognition in the Quarterly
Newsletter. The Branch Chief stated, however, she had no input in the Director’s decision to
give a “Time Off Award” to several employees.

Claim i

Complainant alleged that on August 22, 217, she was notified that she was not selected for the
position of Quality Assurance Division (QAD) Supervisor Single-Family Housing Specialist,
GS-14, advertised under Announcement Number No: 17-HUD-822.

The Director was the selecting official for the QAD Supervisor Single-Family Housing Specialist
position. The Director stated that he implemented an interview panel, created interview
questions, conducted the second round of interviews, and made the final selection.

Further, the Director stated that the best qualified candidates “were interviewed by a panel. The
panel recommended their top three selections. The Atlanta HOC Deputy Director and I
conducted face-to-face interviews with those three candidates and made the selection.”

The Director stated that he and the Deputy Director chose the selectee for the subject position
because he was deemed best qualified. Specifically, the selectee had “supervisory experience, a
comprehensive background in public service, community organization, community outreach,
strategic plan execution, management, training, hiring, streamlining organizational structure,
implementing key initiatives and cultivating partner and stakeholder relationships. He was
technically competent in all areas of HUD’s programs and services.”

The Director stated that he did not select Complainant for the subject position because she
“lacked comparable experience in a supervisory position.” Moreover, the Director stated that
Complainant’s color, disability, age and prior protected activity were not factors in his decision
to select the selectee for the subject position.

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions as discussed
above. Complainant did not prove, by a preponderance of the evidence, that these proffered
reasons were a pretext designed to mask discrimination on any basis alleged. Without proving a
discriminatory motive, Complainant cannot prevail on her discriminatory harassment claim.

We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing,
finding no discrimination.

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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.
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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

April 19, 2019
Date