Erika H.,1 Complainant,v.Julian Castro, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Jan 31, 2017

0120150025 (E.E.O.C. Jan. 31, 2017)

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

Erika H.,1
Complainant,

v.

Julian Castro,
Secretary,
Department of Housing and Urban Development,
Agency.

Appeal No. 0120150025
Hearing No. 460-2013-00052X
Agency No. HUD00622012

DECISION

On September 23, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s August 21, 2014, final order 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.
For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Public Housing
Revitalization Specialist, GS-l101-12, assigned to the Houston Program Center in Houston,
Texas. On June 4, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (Asian), national origin (Indian), sex (female),
color (Brown), age (55), and in reprisal for prior protected EEO activity when: (1) on
February 28, 2012, two Federal Protective Service (FPS) Officers escorted her from the
building; (2) on February 28, 2012, she was issued a 10-day suspension; (3) on March 12,
2012, she was placed on enforced leave; (4) she has been subjected to ongoing and continuous
hostile work environment harassment; (5) on May 16, 2012, she received a mid-year
performance appraisal that contained an unsatisfactory rating in three critical elements; and (6)
on November 6, 2012, she received an end-year "Fully Successful" performance appraisal.

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.
0120150025

2

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s August 19, 2013, motion for a
decision without a hearing and issued a decision without a hearing on July 28, 2014. The
Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS

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. (Aug. 5, 2015) (providing that an administrative
judge’s determination to issue 8a decision without a hearing, and the decision itself, will both
be reviewed de novo). 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 the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. The AJ concluded that Complainant failed to establish a prima
facie case of harassment or disparate treatment. Specifically, the AJ concluded that aside from
Complainant’s bare, uncorroborated assertions the record is devoid of evidence to demonstrate
that she was subjected to harassment or disparate treatment that was motivated by her gender,
race, national origin, color, age or prior EEO activity. In addition, the AJ concluded that the
Agency articulated legitimate, non-discriminatory/retaliatory reasons for its employment
actions and the record is devoid of pretext. Lastly, the AJ concluded that Complainant failed
to establish that the alleged harassment was sufficiently severe or pervasive to affect a term or
condition of her employment and/or create an intimidating, hostile, or offensive work
environment.

As to being escorted from the building by FPS, the AJ noted that the record reveals that, but
for Complainant’s blatant refusal to leave the building when ordered (coupled with her hostile
and aggressive behavior) management would not have summoned FPS to escort her. The AJ
also noted that the record reveals that the proposed 10-day suspension was issued to
Complainant because of her inattention to duty, failure to follow instructions, failure to
complete assignments and insubordination. As to the placement on Enforced Leave, the AJ
noted that Complainant sent numerous emails to top Agency officials accusing co-workers of
mobbing, bullying, and conspiring against her. The AJ also noted Complainant alleged in an
0120150025

3
email that her presence in the office made her violently ill and she feared for her safety.
Complainant also attached an article about an Asian soldier who committed suicide with a self-
inflicted gunshot. Based on Complainant’s email, it was recommended that she submit to a
fitness-for-duty examination. Once Complainant provided documentation from her medical
providers that she was fit for duty, the Agency immediately returned her to duty.

The AJ also concluded that the undisputed record shows that the denial of telework was due to
the fact that Complainant failed to provide the required telework documentation and because
she failed to reapply. In addition, the AJ noted that the record is devoid of evidence with
respect to the reduction of workload and change of job responsibilities, co-workers and her
supervisor (S1) being violent, not being provided the same flexibility in arrival and departure
times as co-workers, being micro-managed, work product corrections ignored, accused of
being a liar, not considered a team player, and being subjected to group critique sessions.

The AJ further concluded that the undisputed record shows that Complainant’s performance
ratings were warranted. Complainant received a "minimally satisfactory" rating in Critical
Element 1 and an "unsatisfactory" rating in Critical Elements 3 and 5 on her May 16, 2012
mid-year Progress Review. For Critical Element I - Occupancy, S1 stated, "Employee's
reluctance to participate in office-wide meetings and joint training sessions where other
employees are also involved hamper employee's ability to effectively carry out duties related to
the use of the [Housing Choice Voucher (HCV)] HCV tool. Employee is advised to improve
working relationship with peers to improve employee's effectiveness in utilizing the HCV tool
to assist [Public Housing Agencies (PHAs)] in monitoring HCV utilization." For Critical
Element 3-Transform the Way HUD Does Business Customer Service, S1 stated “Employee
failed to complete several assignments related to the Annual Assessments of assigned PHAs.
Employee refused to complete these assignments because the tasks required employee to work
closely with peer workers. Employee is advised to improve working relationship with peers."
For Critical Element 5- Engagement and Collaboration, S1 stated "Employee failed to actively
improve tarnished working relationship with peers and seek to avoid personal contact with
peers. Employee generally promotes a negative work environment with peer employees.
Employee is advised to improve working relationship with other employees." In her
November 16, 2012 annual performance appraisal, Complainant did improve in Critical
Element 1, but remained unchanged in Critical Elements 3 and 5.

The AJ found that the record shows that the incidents that Complainant complained of were the
direct result of her unprofessional action or inaction. Moreover, the AJ found the record
devoid of any documentary or testimonial evidence in support of Complainant’s assertions.
Lastly, the AJ found the record devoid of evidence of discriminatory or retaliatory animus on
the part of any responsible management official.

The AJ also notes that even when considering the facts in the light most favorable to
Complainant, none of the alleged incidents rise to the level of severe or pervasive action that
can be considered harassing, nor did they change a term or condition of her employment. In
addition, the AJ concluded that aside from her self-serving uncorroborated assertions,
0120150025

4
Complainant failed to present evidence that the Agency’s articulated, legitimate non-
discriminatory/retaliatory explanations for its employment actions (i.e., that she constantly and
blatantly refused to follow management orders and directives and did not work harmoniously
with co-workers) were a pretext or otherwise motivated by discriminatory or retaliatory
animus.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Equal Employment Opportunity Commission
Administrative Judge’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 (M0416)

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 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 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. The requests 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 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
0120150025

5
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

January 31, 2017
Date