0120102180
09-16-2010
Julia Wong, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Julia Wong,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120102180
Hearing No. 451-2008-00208X
Agency No. HUD-00023-2008
DECISION
Complainant filed an appeal from the Agency's final action dated March 25, 2010, finding no discrimination with regard to her complaint. 29 C.F.R. � 1614.405(a). For the following reasons, we AFFIRM the Agency's final action.
BACKGROUND
In her complaint, dated December 17, 2007, Complainant, a Community Planning and Development (CPD) Representative, GS-12, in the Agency's CPD Office in San Antonio, Texas, alleged discrimination based on race/color (White/ dark brown), national origin (Hispanic-American), sex (female), age (over 40) and in reprisal for prior EEO activity. Therein, Complainant alleged that she was subjected to sexual harassment which created a hostile work environment when on October 17, 2008, she was not selected for the position of Senior CPD Representative, GS-13, under Vacancy Announcement Number 02-MSD-2007-0028z.
Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On February 17, 2010, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency's final action implemented the AJ's decision.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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.
Despite Complainant's contentions on appeal, the Commission finds that grant of summary judgment was appropriate, as no genuine dispute of material fact exists. In this case, the AJ determined that, assuming arguendo that Complainant had established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for the alleged nonselection. The Agency stated that three individuals, including Complainant, were placed on the best qualified candidates in the competitive selection roster for the alleged position at issue. They were interviewed by the Director of CPD, a recommending official, and the Program Manager, Complainant's supervisor. Based on the Director of CPD's recommendation, the selecting official, the Director of the Office of Field Management, selected the selectee with the same national origin, Hispanic, the same sex, female, and over 40, as Complainant, for the position. The Director of CPD indicated that he recommended the selectee, over Complainant, because the selectee was a team leader, had been certified as a HOME specialist, and participated in CPD's Leadership Development Program while Complainant was not. Complainant's supervisor also stated that the selectee was a stronger candidate for the position because her performance had been rated higher than Complainant's. The record indicates that on November 20, 2006, the selectee received the overall rating of outstanding. Report of Investigation (ROI), at Exhibit 5 (Ex. 5). The record also indicates that on November 17, 2006, Complainant received the overall rating of highly successful. ROI, at Ex. 6.
After a review of the record, the AJ determined and we agree that Complainant provided no evidence to show that she was treated differently than other similarly situated employees. Furthermore, Complainant failed to show that her qualifications for the position were plainly superior to the selectee's qualifications or that the Agency's action was motivated by discrimination. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995).
Complainant also claimed that she was subjected to sexual harassment when the Director of CPD showed favoritism to the selectee with respect to training and receiving assistance. The agency indicated that Complainant, the selectee, and all CPD representatives attended the training, i.e., the homeless assistance training, identified by Complainant. The Agency also indicated that Complainant received help when she asked for it. Complainant claimed that on one occasion, the Director of CPD put candy in her palm but she refused; he took a picture of her and the selectee together which Complainant did not like how she looked in the picture; and, he stood beside her chair or behind her making her feel uncomfortable; and he put his arm around her chair. After a review of the record, the AJ determined and we agree that Complainant failed to provide evidence to show that the foregoing conducts were severe or pervasive enough to rise to the level of a hostile work environment. AJ's February 17, 2010 Decision (AJ Decision), at 7.
Accordingly, the Agency's final action is AFFIRMED.
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 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 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
9/16/10
__________________
Date
2
0120102180
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102180