Corazon P.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Nov 29, 2018

0120171499 (E.E.O.C. Nov. 29, 2018)

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

Corazon P.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120171499

Hearing No. 410-2014-0010X

Agency No. HS-ICE-01276-2011

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the EEOC Administrative Judge’s (AJ)
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., 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.

ISSUES PRESENTED

The issues presented are whether the AJ properly issued a decision without a hearing, and whether
the AJ properly found that Complainant did not prove she was subjected to unlawful discrimination
or harassment.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Deportation Officer,
GS-1802-12, in Lumpkin, Georgia, within the Agency’s Immigration and Customs Enforcement,
Office of Enforcement. As a Deportation Officer, Complainant oversaw and managed cases
involving criminal and/or non-criminal aliens who are at various stages of deportation/exclusion
proceedings. Complainant was directly supervised by the Assistant Field Officer Director
(AFOD), and her second-line supervisor was the Supervisory Detention and Deportation Officer
(SDDO1).

On August 22, 2011, Complainant filed an EEO complaint in which she alleged that the Agency
harassed and discriminated against her on the bases of sex (female), age (born in 1957), and in
reprisal for prior protected EEO activity when:

1. In 2009, the Agency required her to be transported to her work unit in a wheelchair;

2. On April 4, 2010, an instructor failed to allow extra lunch time for her to take insulin;

3. In 2011, management officials ignored her and failed to offer her equitable levels of
assistance executing her job duties;

4. On May 6, 2011, the Assistant Field Officer Director (AFOD) questioned her about the
presence of detainees in her office. Later, a Supervisory Detention and Deportation
Officer (SDDO1) yelled at her about the same matter;

5. After May 10, 2011, management officials did not equitably enforce a prohibition
against the presence of detainees in Deportation Officers’ offices in as much as male
officers could have detainees in their offices;

6. On May 25, 2011, she became aware that the Agency failed to properly process her
compassionate transfer request in accordance with Agency policy;

7. On April 6, 2011, she was advised that her age exceeded the maximum allowed age for
the position advertised under vacancy identification number 444652;

8. On July 7, 2011, she became aware that a mission support employee forwarded
information and/or paperwork relating to Complainant’s Office of Workers’
Compensation Programs (OWCP) claim of work-related injury to AFOD;

9. On or about July 1, 2011, management officials threatened to send her to a Fitness-for-
Duty Examination (FFDE), and subsequently informed her before she took the test that
she will not pass; and

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10. Prior to August 16, 2011, the Agency did not properly process the paperwork relating
to her OWCP claim of work-related injury.

In an investigative statement, Complainant stated that she previously filed an EEO complaint in
May 2011. Regarding claim 1, Complainant stated that SDDO1 told her that she was going to
Unit 1 to update the detainees on their deportation cases, and he was going to get a wheelchair to
have Complainant wheeled to Unit 1. Complainant stated that SDDO1 had received a doctor’s
note restricting her from being around detainees, but SDDO1 had a Deportation Officer (C1)
“wheelchair” her to Unit 1. She stated that she was embarrassed and humiliated in front of
everyone, including detainees.

Regarding claim 2, Complainant stated that while taking a Defense and Tactical Exercise class,
she asked a Supervisory Detention and Deportation Officer (SDDO2) to go to lunch 15 minutes
early so that she could take her insulin shot because she must wait 15 minutes to eat after taking
insulin. Complainant further stated that employees were supposed to have an hour lunch, but they
were only given 30 minutes, and she was told she must be back at 1:05 p.m. Complainant stated
that while sitting at lunch around 12:45 p.m., SDDO2 waved for her to come back to class,
although she was back in a timely manner and others were late.

Regarding claim 3, Complainant stated that in June 2011, she worked a coworker’s docket without
any problems or assistance. She further stated that on June 9, 2011, she had to find ways to
interview people on her docket, although AFOD never asked her if she needed assistance. She
further stated that she had to go and ask for help from Immigration Enforcement Officers, who
usually were not available to assist her. Complainant stated that on June 30, 2011, she advised
SDDO1 that she was sending him an email on the Post Order Custody Review Case (POCR)
worksheet for any corrections, but SDDO1 never responded. Complainant also stated on August
3, 2011, she advised SDDO1 that a case was complete, but he did not respond.

Regarding claim 4, Complainant stated that AFOD came her office and questioned her about
detainees in her office. She stated that she then told AFOD that an Immigration Judge ordered
their “voluntary departure,” and she needed to fingerprint them, ensure they purchased an airline
ticket and had a passport, and to have them sign a form. Complainant further stated that after
AFOD left her office, SDDO2 came to her office and yelled that he was “not having this” and
wanted to know why she had detainees in her office. Complainant stated that she advised SDDO2
that an Immigration Enforcement Agent (IEA) went to take the detainees back to her office, but
he brought them back to Complainant’s office because there was a head count. Complainant stated
that SDDO2 then stated that he was not having this conversation with her in front of detainees and
advised her that he was putting the detainees in the hallway.

With respect to claim 5, Complainant stated that male officers still had detainees in their offices,
including an IEA (C2). Additionally, Complainant stated that on June 1, 2011, a Deportation
Officer (C3) had two detainees in his office for interviews, and on June 9, 2011, C3 exited his
office with a detainee.

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Regarding claim 6, Complainant stated that on March 14, 2011, she submitted documents to AFOD
requesting a non-competitive compassionate transfer to vacancy announcement 444652. She
stated that AFOD then informed her that he had submitted the paperwork, but when she went to
his office AFOD was not there. Complainant further stated that SDDO1 sent the paperwork for
her transfer on March 16, 2017. Complainant stated she was informed that her paperwork sat on
a desk from March 15, 2011 until April 28, 2011, and she did not think it was ever signed.

Regarding claim 7, Complainant stated that the Agency’s Laguna Service Center informed her via
email that she was denied the transfer position because her age exceeded the maximum limit for
the position. She stated that she then contacted an official at the Laguna Service Center who
advised her to send an email stating that she was having technical problems with her answer to
Question 32 (Veteran’s Preference). Regarding claim 8, Complainant stated that on July 7, 2011,
she requested information about her 1994 knee injury through Mission Support at the Stewart
Detention Center, and the Center’s official, JH, sent her a copy to AFOD. Complainant further
stated that when she asked JH why he submitted her paperwork to AFOD, JH responded that he’s
“his boss.”

Regarding claim 9, Complainant stated that during mediation, the Agency representative
repeatedly said that the Agency would send her for a FFDE, and she would not pass the exam.
Complainant stated that she took the exam, but the doctor that examined her was not allowed to
decide on her case.

With respect to claim 10, Complainant stated that after she submitted her OWCP form to AFOD,
he sent it to JH, who then gave it to a Mission Support official (DE). Complainant further stated
that she later learned that her OWCP form sat around for approximately two weeks, and she had
to intervene for it to be properly processed.

After 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 November 20, 2014, motion for a decision without a hearing and
issued a decision without a hearing on August 10, 2016. When the Agency failed to issue a final
order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant
failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s
final action pursuant to 29 C.F.R. § 1614.109(i).

CONTENTIONS ON APPEAL

On appeal, Complainant contends that she can establish a prima facie case of discrimination
because she can show that employees outside her protected classes were treated more favorably
than she was treated under similar circumstances. Complainant further contends that there is a
genuine issue about material facts regarding her FFDE, OWCP paperwork, and request for extra
time to eat after administering insulin. The Agency requests that we affirm its final order.

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ANALYSIS AND FINDINGS

We must first determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. 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.

If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding
a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without holding a hearing only upon a determination that the record
has been adequately developed for summary disposition. See Petty v. Dep’t of Defense, EEOC
Appeal No. 01A24206 (July 11, 2003). According to the Supreme Court, Rule 56 itself precludes
summary judgment “where the [party opposing summary judgment] has not had the opportunity
to discover information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the
hearing context, this means that the administrative judge must enable the parties to engage in the
amount of discovery necessary to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if
necessary, after receiving an opposition to a motion for a decision without a hearing).

After a careful review of the record we find that there was no genuine issue of material fact or
credibility that warrants a hearing. The AJ found that the undisputed record, including the
complaint, sworn testimony, Report of Investigation, and all submissions of the parties, was
comprehensive, complete, impartial, and constituted an appropriate basis upon which to render a
decision without a hearing in favor of the Agency. We agree, and therefore find that a decision
without a hearing was appropriate.

Disparate Treatment and Harassment

Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated
in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). For a complainant to prevail, she must first establish a prima facie case of
discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of
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discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once a complainant has established a prima facie case, the burden of production then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts to the complainant to demonstrate by a preponderance of the evidence that the Agency’s
reason(s) for its action was a pretext for discrimination. At all times, the complainant retains the
burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the
Agency acted on the basis of a prohibited reason. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

In order to establish a claim of hostile-environment harassment, 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 to the employer. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982).

In this case, for purposes of analysis, we assume arguendo that Complainant established a prima
facie case of disparate treatment. Nevertheless, we find that the Agency provided legitimate,
nondiscriminatory explanations for its actions. Specifically, regarding claim 1, SDDO1 stated that
Deportation Officers must make weekly visits to their assigned housing units, but Complainant
had not been to her housing unit for a while, and detainees were demanding to speak with her to
find out the status of their cases. SDDO1 further stated that another SDDO informed him that
Complainant needed to visit a housing unit and could do so using a wheelchair if necessary. He
stated that to his knowledge, Complainant was unable to walk to the unit herself, and therefore, he
obtained a wheelchair and took her to the housing unit. SDDO1 stated that he left Complainant in
a side room, and the contract staff in the housing unit assisted with bringing detainees to
Complainant.

Regarding claim 2, SDDO2 stated that he was the Tactics Instructor and gave Complainant and
everyone else in attendance at the class an hour for lunch. SDDO2 further stated when
Complainant requested 15 minutes to administer her insulin, he replied that she had an hour, which
was four times what she requested. SDDO2 stated that Complainant’s medical needs were
accommodated in accordance with Agency policy.2

2 We note that Complainant did not claim in her complaint that the Agency discriminated against
her on the basis of disability. Therefore, we restrict our analysis to the issue of whether she was
discriminated against on the bases of sex, age, and in reprisal for EEO activity.
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Regarding claim 3, AFOD stated that he was not aware of management ignoring or failing to offer
Complainant equitable levels of assistance in performing duties, and he personally assisted her on
numerous occasions. SDDO1 stated that he was unaware that Complainant was ignored by
management or that management failed to provide equitable levels of assistance to Complainant.

Regarding claim 4, AFOD stated that he instructed all his personnel not to take detainees into their
offices or to conduct interviews in their offices because of a change in local policy enacted by the
union to enhance employee safety. AFOD further stated he did not yell at Complainant. SDDO1
stated that he recalled that Complainant had numerous male detainees waiting in and outside her
small office, and he questioned her briefly and left. SDDO1 stated that he did not order
Complainant to remove detainees from the work area.

Regarding claim 5, SDDO1 and SDDO2 stated that after the policy was changed in May 2011,
they were unware that any detainees had been in the office of male officers. Regarding claim 6,
SDDO1 stated that Complainant’s compassionate transfer request was forwarded to the Field
Office for any action it deemed appropriate. SDDO2 further stated that Complainant said that she
was unable to care for herself and needed to be close to family. He stated that to his knowledge,
management was not acting on any compassionate requests at that time, and the Field Office
encouraged anyone requesting compassionate transfer to apply for open job vacancies.

Regarding claim 7, management stated that it was unaware of the matters in this claim. Regarding
claim 8, SDDO1 stated that he is sure he had access to Complainant’s OWCP claims paperwork
because he had been involved before with her OWCP claim. He stated that a management official
must assist with filing the claim; therefore, it would not be unusual for him to have information
regarding an OWCP claim. SDDO1 further stated that management must assist with filing claims,
authorizing treatment, and tracking claims.

Regarding claim 9, AFOD and SDDO1 stated that they were aware that Complainant was informed
she was required to take a FFDE, but they were not aware of any management official stating that
she would not pass the exam. With respect to claim 10, SDDO1 stated that to the best of his
knowledge, all forms necessary to complete Complainant’s OWCP claim were properly processed.

We find that Complainant has not presented any evidence from which it can be reasonably
concluded that the Agency’s nondiscriminatory explanations are pretext for unlawful
discrimination. In so finding, we note that although management should have consulted
Complainant before escorting her to the unit in a wheelchair, there is no evidence that Complainant
expressed her objection to this arrangement. At any rate, there is no persuasive evidence that
management sought to degrade or embarrass Complainant through these actions.

Regarding Complainant’s transfer request, we note that Complainant’s notice of ineligibility was
generated by a computer system that automatically responded to answers on Complainant’s
application. Moreover, the record reveals that all non-competitive transfers and job swaps were
denied in 2011. Regarding detainees in offices, we note that another Deportation Officer attested
that, although Deportation Officers were allowed to have detainees in their offices before a policy
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change in May 2011, management did not allow them to do so after the policy change. Although
Complainant contends that officers had detainees in their offices on two occasions after the policy
change, she has not presented any evidence that management was aware of these violations of the
policy. Further, to the extent that Complainant contends that the Agency discriminatorily
processed her OWCP claim, we do not find that taking two weeks to process Complainant’s claim
was unreasonable, and there is no evidence that the Agency’s actions undermined her OWCP
claim.

Thus, we conclude that the AJ properly found that Complainant did not prove she was subjected
to unlawful discrimination or harassment. See Oakley v. U.S. Postal Serv., EEOC Appeal No.
01982923 (Sept. 21, 2000); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994).

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the AJ’s decision for the reasons set forth
herein.

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.
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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 (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

November 29, 2018
Date