0120132666
07-16-2015
Complainant, v. Julian Castro, Secretary, Department of Housing and Urban Development, Agency.
Complainant,
v.
Julian Castro,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120132666
Hearing No. 470-2012-00081X
Agency No. HUD001392010
DECISION
Complainant filed an appeal from the Administrative Judge's May 7, 2013 decision concerning her equal employment opportunity (EEO) complaint. She alleged 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Attorney-Advisor at the Agency's Office of the General Counsel facility in Kansas City, Kansas.
On December 3, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), national origin ("European"), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, when:
1. on June 9, 2010, Complainant was not selected for promotion; and
2. on July 15, 2010, Complainant was given a two-day suspension.
The record shows that Complainant had not filed any prior EEO complaints. She alleged that she did speak out against another manager's personnel practices against others. That manager was not in Complainant's chain of command. That manager, however, was in charge of an investigation against Complainant for discrimination. The record does not show that the official was aware of Complainant's speaking out against her.
Claim 1 - Non-Selection
On April 14, 2010, the Office of General Counsel announced vacancies in five GS-14 attorney positions. Complainant applied for three of the positions, but she was not selected. The Agency selected two Caucasian employees and one employee who was not American-born.
The selecting official (Caucasian / American) testified that he did not select Complainant because, on January 1, 2010, Complainant published an ad on Craigslist that indicated that she was seeking renters in a "white, blue-collar, community." Complainant acknowledged that she published the ad. A Hispanic resident took offense and filed a discrimination complaint against the Complainant. The Agency was made aware of the complaint. The Agency investigated the incident and prepared to charge Complainant with violating the Fair Housing Act (FHA).
Claim 2 - Two-Day Suspension
Complainant's first line supervisor (Caucasian / American) proposed a two-day suspension for "conduct that violated the Fair Housing Act and the standards of ethical conduct for employees of the executive branch." Complainant's second line supervisor (Caucasian / American) agreed that Complainant should be suspended. Complainant was issued the two-day suspension.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before a United States Equal Employment Opportunity Commission Administrative Judge (AJ).
The AJ was scheduled for a hearing on February 26 to February 28, 2013.
There was a snow storm at the time of the scheduled hearing. Complainant requested a postponement, which the AJ denied. The AJ delayed the hearing by one day. The AJ directed the hearing to begin in the afternoon when the weather cleared. Both parties were given the option of attending in person or calling in. Complainant called in.
On the second day, the AJ ordered the Agency to provide a taxi for the Complainant so that she would be able to attend the hearing. When the taxi did not arrive, the Agency's counsel drove Complainant to the hearing. When Complainant arrived at 11:40 AM, she asked when the lunch break would begin. The record shows that there were numerous breaks permitted.
Eleven witnesses were approved. Complainant called seven witnesses and rested her case. Complainant chose not to call four witnesses.
Three management witnesses testified that the reason why Complainant was not selected was because of the rental property ad she placed, in which Complainant described the property as being in a "white" community. Agency witnesses also testified that Complainant did not seem to be aware of the seriousness of the matter, inasmuch as Complainant worked for the agency charged with preventing housing bias.
The AJ noted at several points that he did not find Complainant to be credible. During the hearing, Complainant did not make any objections regarding what she later claimed was the AJ's bias. She also did not file a motion for recusal.
The AJ Decision
The AJ stated that he did not believe the Complainant and "based on the totality of the evidence presented here, the complainant's claim of discrimination based on race and national origin are hereby dismissed."
With regards to the retaliation claim, the AJ found that Complainant had not engaged in any prior EEO activity. The only EEO activity was the instant complaint. The AJ found that there was no evidence that the official, whom Complainant alleged was retaliating against others, "actually knew that the complainant has raised" concerns. The AJ ruled in favor of the Agency.
Complainant appealed directly from the AJ decision. The Agency issued a Final Order adopting the AJ decision, after Complainant filed her appeal.
On appeal, Complainant argues that the decision should be overturned because she believes the AJ was biased against Complainant and denied her an opportunity to have a fair and impartial hearing. She also maintains that the AJ erred when he omitted her claim that she was retaliated against, because management feared that Complainant's complaint would highlight the Agency's failure to stop prohibited personnel practices against others by one of its managers.
The Agency argues that the decision should be affirmed because the AJ decision is supported by substantial evidence and Complainant failed to show that she was denied a full and fair opportunity to present her case.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
Disparate Treatment
Title VII states that "[a]ll personnel actions affecting [federal] employees or applicants for employment . . . shall be made free from any discrimination based on . . . race or national origin." 42 U.S.C. �2000e-16(a). To prevail in a Title VII disparate treatment claim such as this, Complainant must 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. Co. v. Waters, 438 U.S. 567, 576 (1978). We find that the record supports the determination that Complainant did not show that she was subjected to discrimination because of her race or national origin or that she was treated differently than other similarly situated individuals outside of her protected group.
Similarly, a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or 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). Complainant did not show that the decision makers were aware of any prior EEO activity by the Complainant.
The prima facie inquiry may be dispensed with in this case, however, since the Agency articulated a legitimate, non-discriminatory reason for its actions. The deciding official averred that management did not select Complainant for promotion and issued a two-day suspension because it determined that Complainant engaged in conduct that violated the Fair Housing Act and breached the standards of ethical conduct. Complainant does not dispute that management had its reasons for its actions. Consequently, we agree with the AJ's finding that the Agency has 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 Products, 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).
Complainant offered no evidence which would show that the Agency's reasons for its actions were a pretext for discrimination. The AJ considered the totality of Complainant's evidence, but was not persuaded that Complainant had shown by a preponderance of the evidence that the Agency's actions were due to unlawful race, national origin or retaliatory animus.
In reaching his decision, the AJ made credibility findings based on the testimony at the hearing. Those findings are entitled to due deference.
Further, we find the AJ's decision is supported by the record. For all of these reasons, we discern no reason to overturn the AJ's decision.
CONCLUSION
Accordingly, we AFFIRM the Final Order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 16, 2015
__________________
Date
2
0120132666
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132666