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

Equal Employment Opportunity Commission

Apr 25, 2019

0120180384 (E.E.O.C. Apr. 25, 2019)

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

Miriam B.,1
Complainant,

v.

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

Appeal No. 0120180384

Agency No. HUD-00070-2016

DECISION

On November 1, 2017, 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
October 2, 2017 final decision 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., 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. Our review is de novo.
For the following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Equal Opportunity
Specialist (EOS), GS-0360-13, at the Agency’s Office of Fair Housing and Equal
Opportunity/Enforcement in Los Angeles, California.

On July 19, 2016 (and amended several times), Complainant filed an EEO complaint wherein she
claimed that the Agency discriminated against her and subjected her to a hostile work environment
on the bases of her race (African-American), sex (female), disability (back injury), age (55), and
in reprisal for prior protected EEO activity 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.
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1. Complainant was not selected for the position of the Supervisory Equal Opportunity
Specialist, GS-0360-13/14;

2. On February 26, 2016, Complainant was subjected to harassment by the staff of the
Bureau of Fiscal Services when inquiring about the status of her application;

3. On November 8, 2016, Complainant was instructed in a meeting to “sit and not listen,”
and was later told to leave the meeting by the Branch Chief because she was being a
distraction;

4. On or about October 18, 2016, Complainant was harassed about the quantity of cases
that she closed since January 2014;

5. On January 30, 2017, and in December 2016, Complainant was denied her right by
California statute not to conduct/participate in a taped recorded interview;

6. On January 24, 2017, Complainant emailed the Second-level Supervisor (S2)
informing him that there were no position descriptions in HIHRTS and requested again
for him to send a copy to her, but with no response; and

7. On February 23, 2017, Complainant was issued a written Letter of Reprimand for
Unprofessional and Disruptive Behavior in the Workplace.

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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

With regard to claim (1), Complainant applied for the position and was found to meet the minimum
qualifications for both the GS-13 and GS-14 levels. Complainant and three other candidates were
interviewed. Complainant was interviewed by S2 and the Director of the San Francisco Center.
S2 stated that the most important criteria for selection was to improve the quality and quantity of
case closure production as well as expert-level knowledge and track record of leadership to help
in that process. The San Francisco Center Director remarked that the selectee possessed superior
qualifications and experience for the position. According to S2, Complainant was not selected and
he ranked her last because she provided short, vague responses to the interview questions, used
the least amount of interview time, and did not come across as being ready to manage and lead the
division and improve the quantity and quality of their work. The San Francisco Center Director
explained that Complainant’s interview answers were vague, that she had difficulty explaining
concepts and ideas, and she mistakenly referred to a disparate treatment case as a disparate impact
case.

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The Regional Director was the selecting official. She stated that she relied heavily on the
recommendations of the panel members. According to the Regional Director, the most important
criteria for the position were the ability to tackle any allegation and know how to lead the
investigation ability, to function independently and high motivation to get work completed by staff
in a timely manner. The Regional Director stated that Complainant was not selected because she
was not the best qualified based on her responses to interview questions and performance.

Complainant claimed that the selectee had been preselected for the position because he received
training opportunities, lead assignments and direct mentoring from the Regional Director for two
years and she did not receive those opportunities. Complainant maintained that her skills,
knowledge, experience and accomplishments outweighed those of the selectee. The Regional
Director denied that the position was preselected. The Regional Director stated that the selectee
was not provided with mentorship opportunities and instead received a rotational Acting Branch
Chief position that was offered to all senior EOSs.

With regard to claim (2), Complainant stated that on February 26, 2016, she called the Bureau of
Fiscal Services to inquire about the status of her application and to find out why she did not qualify
for a GS-13 or GS-14 but was not allowed to speak to the Director and was threatened by an
employee. The Human Resources Assistant stated that Complainant called the office three times,
was screaming on each call and demanded to talk to the Director immediately. The Human
Resources Assistant further stated that she was instructed by her next-in-command to tell
Complainant if she continued, she would be transferred to the guards’ desk for harassing calls, and
Complainant did not call further. The Director asserted that her office had made a mistake in
reviewing Complainant’s application and determining her qualifications, and that once the error
was detected, Complainant was judged qualified at the GS-13 level and added to the referral list
for the position at issue in claim (1).

In terms of claim (3), Complainant claimed that her Supervisor told her to sit and not listen at a
meeting, and then told her to leave the meeting because she was being a distraction. Complainant
denied she was being disruptive and stated that she just questioned whether the training in the
meeting was mandatory. Complainant maintained she was sitting in silence and not participating,
but that the Supervisor lied about whether the training was mandatory. One of Complainant’s
coworkers stated that the meeting was mandatory for all EOSs and that during the meeting,
Complainant was observed looking at her personal mail. According to the coworker, the
Supervisor instructed Complainant to stop doing so and Complainant stated that the training was
a violation of her privacy and the Supervisor did not have the right to make her sit through the
training. The coworker explained that the Supervisor responded that it was fine if she did not want
to listen to the content of the training materials, but that she could not work on other things during
the training. The coworker observed that the Supervisor asked Complainant to leave the training
because she continued to argue. S2 stated that Complainant was told to leave the training due to
her inappropriate, disruptive, and unprofessional behavior. The Supervisor stated that he asked
Complainant to put her mail away, and that she did so, but that over the next few minutes, she
began sighing loudly, looking at other employees and rolling her eyes, so he asked her to leave
because she was being disruptive.
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With respect to claim (4), Complainant claimed that she has been harassed since January 21, 2014,
in emails, performance plans, and performance evaluations by S2 and the Regional Director
concerning the number of cases she has closed. Complainant stated that she was told she was
being rated “Fully Successful” because she had only closed three cases in Fiscal Year 2016, but
she maintained that she had successfully closed eight cases. Complainant stated that S2 yelled at
her to show him and when she did so, he told her he was not going to raise her rating because she
had not closed 12 cases. Management stated that Complainant closed seven cases in Fiscal Year
(FY) 2016, she closed eight cases in FY 2015, and nine cases in FY 2014. According to the
management, performance standards do not contain a goal for the number of cases closed.
However, S2 noted that the 12-case closure standard had been the performance standard at the
facility for about 15 years, but that it was removed recently. S2 asserted that EOSs must work
their cases on a consistent basis and not allow time lags or delays. The Supervisor stated that
Complainant was rated as “Fully Successful” in the relevant years even though she did not close
12 cases in any of those years, so no quota was applied to her ratings.

As for claim (5), Complainant claimed that S2 denied her right to not participate in a tape-recorded
interview as part of her duties and that her Supervisor sent her an email inquiring why she did not
want to be recorded and misrepresented the relevant California statute. Complainant argued that
the matter was a two-party consent law and she did not want to be recorded. Management noted
that the Agency’s Investigative Manual permitted the use of tape recordings of interviews during
investigations and the lawyer for the party insisted that the interview be recorded. S2 asserted that
Complainant misinterpreted the California statute and attempted to use the statute to avoid carrying
out her investigation. The Supervisor started that the California statute referred to by Complainant
prohibited recording a confidential communication without the consent of all parties, and that it
was not applicable to this situation because the interviews Complainant conducted were not
confidential communications. The Supervisor stated that he had to instruct Complainant to
comply.

With respect to claim (6), Complainant stated that on January 24, 2017, S2 provided her with a
GS-12 position description, but that he ignored her request for a GS-13 position description. S2
affirmed that he provided Complainant with a copy of the GS-13 position description on January
30, 2017, and that he told her on that same date that the same standards that were used last Fiscal
Year would be used for the current performance period. According to S2, Complainant has self-
service access to her position description any time she wanted it and that she has been told to
retrieve her own copy of it.

With regard to claim (7), Complainant argued that the Letter of Reprimand contained numerous
lies and that it was issued because she had been sending emails detailing the Supervisor’s bullying,
demeaning and deceptive behavior, which was furthering the hostile work environment that S2
started. Management cited three instances in the Letter of Reprimand in which Complainant
displayed unprofessional and disruptive behavior: her disruption at the November 8, 2016,
training, her demeaning comments in an e-mail to the Supervisor on December 14, 2016, and her
loud and disrespectful response to the Supervisor in a weekly branch meeting.
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S2 asserted that each time Complainant engaged in bad behavior, an attempt was made to reason
with her, but that he issued the Letter of Reprimand after the third incident of misconduct.

In the final decision, the Agency determined that management had articulated legitimate,
nondiscriminatory reasons for its actions as detailed above. Complainant attempted to establish
pretext by arguing that S2 reassigned difficult cases to help Hispanic employees and has continued
to promote those employees. Complainant argued that she was harassed by the Bureau of Fiscal
Services based on her race and sex because it is in West Virginia, which she claims is a racist,
sexist area of the country. Complainant maintained that she reported the harassment to the internal
investigation unit and various officials but that the harassment by her Supervisor and S2 has
worsened because Headquarters management has ignored it and condoned their actions.
According to Complainant, the FHEO GDAS initiated an investigation in February 2017, but he
has done nothing to stop the harassment she receives on a daily basis. The Agency concluded that
Complainant failed to show that the Agency’s explanation for management’s actions was a pretext
for discrimination.

With regard to Complainant’s harassment claim, the Agency determined that even if the incidents
occurred exactly as Complainant claimed, they did not rise to the level of a hostile work
environment, nor were they otherwise severe or pervasive enough to have unreasonably interfered
with Complainant’s job performance. The Agency asserted that management’s actions were
reasonable and taken in the course of discharging supervisory responsibilities. As a result, the
Agency concluded that Complainant was not subjected to discrimination, reprisal, or a hostile work
environment as alleged. Thereafter, Complainant filed the instant appeal without submitting any
arguments or contentions in support.

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n. 13. The prima facie inquiry may be dispensed with where the Agency articulated
legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance
of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Prods. Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995)

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Here, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. With regard
to claim (1), according to S2, Complainant was ranked last of the qualified candidates because she
provided short, vague responses to the interview questions, used the least amount of interview
time, and did not come across as being ready to manage and lead the division and improve the
quantity and quality of their work. The San Francisco Center Director corroborated that
Complainant’s interview answers were vague, that she had difficulty explaining concepts and
ideas, and she mistakenly referred to a disparate treatment case as a disparate impact case. By
contrast, the San Francisco Center Director remarked that the selectee possessed superior
qualifications and experience for the position.

With regard to claim (7), the Agency cited three instances in which Complainant displayed
unprofessional and disruptive behavior, including her disruption at a training, her demeaning
comments in an email to the Supervisor, and her loud and disrespectful response to the Supervisor
in a weekly branch meeting. S2 asserted that he issued the Letter of Reprimand following several
failed attempts to correct Complainant’s conduct.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. With respect to
her non-selection alleged in claim (1) one way Complainant can establish pretext is by showing
that her qualifications are observably superior to those of the selectee. Bauer v. Bailar, 647 F.2d
1037, 1048 (10th Cir. 1981). This is simply one method and is not the only way Complainant may
establish pretext as to his non-selection claim

Complainant contends that she was more qualified than the selectee and that preselection occurred
given that the selectee received training opportunities, lead assignments and direct mentoring from
the Regional Director for two years and she did not receive those opportunities. The Commission
notes that even if preselection occurred, it would not be unlawful unless Complainant can show
that the preselection was driven by discriminatory or retaliatory animus. See Nickens v. Nat'l
Aeronautics Space Admin., EEOC Request No. 05950329 (Feb. 23, 1996). Preselection, per se,
does not establish discrimination when it is based on the qualifications of the selected individual
and not some prohibited basis. McAllister v. U.S. Postal Serv., EEOC Request No. 05931038
(July 28, 1994).

The Commission finds that Complainant failed to show that her qualifications for the position at
issue were plainly superior to those of the selectee. In this case, the selectee had attributes that
justified his selection, and the selection officials affirmed that they believed the selectee was better
equipped to meet the Agency's needs. In the absence of evidence of unlawful discrimination, the
Commission will not second guess the Agency's assessment of the candidates' qualifications. Tx.
Dent. of Cmty. Affairs v. Burdine, 450 U.S. at 259.

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The Commission finds no persuasive evidence that Complainant's protected classes were a factor
in any of the Agency’s actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real
reasons and that discriminatory was a factor in its actions. Complainant failed to carry this burden.
As a result, the Commission finds that Complainant has not established that she was subjected to
discrimination as alleged.

Hostile Work Environment

To establish this claim, Complainant must show that: (1) she belongs to a statutorily protected
class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was based on her statutorily
protected class; (4) the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In determining that a working
environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct,
its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes
with an employee’s work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994).

Upon review of the alleged acts of harassment, we find that whether considered individually or
cumulatively, the incidents alleged by Complainant were not sufficiently severe or pervasive to
constitute a hostile work environment. Even assuming that the alleged conduct was sufficiently
severe or pervasive to create a hostile work environment, there is no persuasive evidence in the
record that discriminatory or retaliatory animus played a role in any of the Agency's actions. The
record reflects that the alleged incidents were more likely the result of routine supervision,
managerial discipline, and general workplace disputes and tribulations. Accordingly, we find that
Complainant has not established that she was subjected to discrimination, reprisal, or a hostile
work environment as alleged.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.
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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 25, 2019
Date