[Redacted], Matilda C., 1 Complainant,v.Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Feb 9, 2022

Appeal No. 2021000467 (E.E.O.C. Feb. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Matilda C.,1 Complainant, v. Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency. Appeal No. 2021000467 Hearing No. 530-2018-00309 Agency No. HUD001242013 DECISION On October 22, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 18, 2020 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. BACKGROUND During the period at issue, Complainant worked as an Equal Opportunity Specialist, GS-12, at the Agency’s Office of Fair Housing and Equal Opportunity (FHEO) in Philadelphia, Pennsylvania. On January 16, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discriminatory harassment 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. 2021000467 2 Claim A: The Agency subjected her to discriminatory harassment based on race (African American), age (over 40), and in reprisal for prior EEO activity when: 1. Since July 2012 and continuing to the present management has tried to provoke and force her to resign or retire from the GS-0360-12 journey level position, due to her age. 2. On September 10, 2013, she received an email from her supervisor inquiring about her arrival time, because when her supervisor walked over to check her workspace at 8:20 a.m. Complainant was not at her desk. 3. On September 12, 2013, her supervisor conducted a case review meeting to discuss her “aged inventory.” Her supervisor was “killing time” until the Program Center Director could join the meeting. Once the Program Center Director joined the meeting, the supervisor began discussing work breaks. Complainant informed management that she would not engage in a conversation regard work breaks without union representative. 4. Complainant was harassed by her supervisor regarding abuse of credit hours that was preapproved to file two HUD inquiries. 5. Her supervisor made her perform investigative duties by instructing her to retrieve additional documents and/or information from claimants, because her supervisor did not believe Complainant possessed the knowledge, skills, and abilities to perform her duties. 6. On December 16, 2013, Complainant’s supervisor disputed her timesheet entry for December 12, 2013. Complainant told her that the timesheet reflected that she teleworked on that day. However, the supervisor claimed that Complainant did not approve Complainant’s timesheet because she did not work from home that day. Complainant told the supervisor that she worked from home and worked the entire eight hours as indicated on the timesheet. Claim B: The Agency subjected her to harassment based on her prior EEO activity, on July 11, 2014, she learned she was placed on a Performance Improvement Plan (PIP). She was placed on a PIP to discourage her from applying for the Supervisory Intake Chief’s position advertised on or about July 5, 2014. 2021000467 3 After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency submitted a Motion for a decision without a hearing. Complainant did not response to the motion. On September 17, 2020, the AJ issued a decision by summary judgment in favor of the Agency finding no discrimination or unlawful retaliation was established. The Agency issued a final order adopting the AJ’s decision. The instant appeal followed. 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. Disparate Treatment: Claim B A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 2021000467 4 The undisputed facts fully support a determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. Complainant alleged that the reason she was placed on a PIP in July 2014 was to discourage her from applying for the Supervisory Intake Chief’s position advertised on or about July 5, 2014. During the investigation, however, management witnesses and documentary evidence indicates the proffered reasons for Complainant’s PIP was her failure to timely process incoming Fair Housing complaints assigned to her. As a result, Complainant’s inventory of cases was increasing and contribution to a backlog of cases prompting the transfer of several cases for processing away from Complainant. In addition, management asserted Complainant’s written work product included frequent grammatical errors, and she was not timely and accurately completing jurisdictional determinations. Complainant successfully completed the actions required of her under the PIP, and she was informed of her successful completion in November 2014. While Complainant believes she was treated in a manner to discourage her to apply for the supervisory position, she did apply for the position. Complainant was interviewed but was not selected for the Supervisory Branch Chief’s position. The record supports a determination that the PIP was not issued to impede Complainant from applying for positions, for the reasons discussed above. On appeal, Complainant did not prove, beyond bare assertions, and by a preponderance of the evidence, that the Agency management’s proffered reasons were a pretext designed to mask discrimination on the bases alleged. Her race, age or prior protected activity did not appear to have any impact on the decision made. Harassment/Hostile Work Environment: Claim A To prove her ongoing harassment claim, 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, her race, age or prior protected activity (current). Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Regarding claim 1, Complainant asserted that since July 2012 and continuing to the present management has tried to provoke and force her to resign or retire from the GS-0360-12 journey level position due to her age. 2021000467 5 The Regional Director for Region 3 (African American, over 40) stated that she does not work with Complainant, but Complainant’s supervisor reported directly to her.2 The Regional Director stated that management had not tried to provoke or force Complainant to resign or retire. She stated that she does not know why Complainant would make this allegation because she has been given support and training to improve her performance. Regarding claim 2, Complainant alleged that on September 10, 2013, she received an email from her former supervisor inquiring about her arrival time because when her supervisor walked over to check Complainant’s workspace at 8:20 a.m., Complainant was not at her desk. Subsequently, the former supervisor sent an email to Complainant. The record contains a copy of the former supervisor’s email dated September 10, 2013, in which she asked Complainant what time that Complainant had arrived in the office. She noted that Complainant has a specific assignment that day, which had not been yet transferred to her. The former supervisor stated later that morning, Complainant stormed into the former supervisor’s office in an agitated stated, asking the former supervisor why she was questioning Complainant’s arrival time. The former supervisor stated that Complainant raised her voice and told her she had no right to ask her when she got in the office. The former supervisor told Complainant to leave her office and come back later when she was calm, because she was speaking so loudly that she was disrupting the office. The Regional Director recalled the incident because the former supervisor provided her an email detailing Complainant’s hostility toward her after she inquired about Complainant’s whereabouts. In her email, the former supervisor notified the Regional Director that Complainant was supposed to be on an Agency Hotline at 8:30 a.m. and she went to check to see if Complainant was at her desk. Regarding claim 3, Complainant alleged that on September 12, 2013, her former supervisor conducted a case review meeting to discuss her “aged inventory” and she was “killing time” until the Program Center Director could join the meeting. Once the Program Center Director joined the meeting, the former supervisor began discussing work breaks, Complainant informed management that she would not engage in a conversation regard work breaks without union representative. The Regional Director stated that she was not completely aware of the specifics of the September 12, 2013 meeting. However, the Regional Director stated that in January 2014, she worked with Complainant and her former supervisor to help Complainant reduce her intake backlog. Specifically, the Regional Director stated that Complainant’s backlog began to have a “catastrophic impact” on the work of the Region. Regarding claim 4, Complainant claimed that she was harassed by her supervisor regarding abuse of credit hours that were preapproved to file two HUD inquiries. The Regional Director had no knowledge of this matter. 2 The record reflects that Complainant’s former supervisor retired on May 31, 2014, and died shortly thereafter. 2021000467 6 The record reflects Complainant was preapproved to work two credit hours by her former supervisor. The purpose was to complete a work assignment to complete the work related to the processing of two Fair Housing complaints. Complainant claimed that she saw her former supervisor at the elevator engaging in a conversation regarding the credit hours for Complainant to work and made reference about Complainant not “standing around.” Complainant indicated she told the former supervisor that despite having completed the work, her supervisor made “negative remarks.” Regarding claim 5, Complainant alleged that her supervisor makes her perform investigative duties by instructing her to retrieve additional documents and/or information from claimants because her supervisor does not feel possesses the knowledge, skills, and abilities to perform her duties. The Philadelphia Program Center Director (“Director”), also Complainant’s former supervisor from October 2011 to July 2012, explained that the role of the Intake Specialist is to assess jurisdiction to determine if a decision would be made to accept a complaint. She also noted that additional questioning and documentation of the parties is a requirement for Complainant’s job description. The Director averred that Complainant possessed the knowledge, skills, and ability to do the job for approximately twelve years. Regarding claim 6, Complainant claimed that on December 16, 2013, Complainant’s former supervisor disputed her timesheet entry for December 12, 2013. Complainant told her that the timesheet reflected that she teleworked on that day. However, the supervisor claimed that she did not approve Complainant’s timesheet because Complainant did not work from home that day. Complainant told the supervisor that she worked from home and worked the entire eight hours as indicated on the timesheet. The record contains a copy of the former supervisor’s memorandum dated February 12, 2014, suspending Complainant’s telework due to an extensive and severely-aged backlog of housing discrimination claims. The memorandum indicated that consideration will be given to lifting this suspension once this backlog has been eliminated. After careful review of the record, we conclude that the weight of the evidence fully supports the AJ’s determination that Complainant’s harassment/hostile work environment claim is precluded because Complainant failed to establish that any of the disputed actions were motivated by her race, age or by retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s summary judgment finding no discrimination. 2021000467 7 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021000467 8 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 February 9, 2022 Date