U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Calvin D.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2020003309 Hearing Nos. 480-2016-00309X 480-2018-00103X Agency Nos. HS-ICE-02511-2015 HS-ICE-26909-2016 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 14, 2020, final order concerning his 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. At the time of events giving rise to this complaint, Complainant worked as a Deportation Officer/Immigration Enforcement Agent at the Agency’s San Diego Field Office in San Diego, California. On April 19, 2015, Complainant filed an EEO complaint (HS-ICE-02511-2015) alleging that the Agency subjected him to discrimination and harassment on the bases of race (Caucasian) and age (48), and in reprisal for prior protected EEO activity 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. 2020003309 2 1. during the first week of November 2012, Complainant was talked to in a demeaning manner by a coworker, who expressed disappointment that Complainant was allowed in the unit; 2. in 2014, Complainant reported harassment by coworkers to a supervisor and nothing was done; 3. on July 16, 2014, while speaking with a supervisor, a coworker commented to get Complainant out of the work center; 4. on July 16, 2014, a coworker commented that Complainant was about to retire; 5. on or about October 18, 2014, Complainant received a call from a supervisor who stated that she would sign off on a permanent transfer out of the unit; 6. on November 21, 2014, while meeting with supervisors, Complainant was given the option to move to a less desirable unit while a coworker was allowed to remain in the unit; 7. on November 24, 2014, a supervisor questioned Complainant’s work by inquiring if Complainant had written memos or if the Union had written them; 8. on December 15, 2014, Complainant reported to the Staging Unit for a vehicle, but was told there was no vehicle available; and 9. on December 18, 2014, Complainant reported to the Staging Unit for a vehicle, asked for someone to inspect the vehicle, and was told by a supervisor, in vulgar terms, to just take the vehicle. On September 3, 2016, Complainant filed another EEO complaint (HS-ICE-26909-2016) alleging that the Agency subjected him to discrimination and harassment on the bases of sex (male, perceived sexual orientation) and age, and in reprisal for prior protected EEO activity when: 10. on August 7, 2015, Complainant learned that someone had placed a document labeled “Hurt Feeling Report” on his desk. The next day, on August 8, 2015, Complainant informed management that he found the document to be offensive and continued harassment during Complainant’s ongoing EEO investigation. Complainant reported the hostile working environment to the Joint Intake Center, which did not conduct an investigation, and no action was taken on the incident; 11. on September 16, 2015, the Deputy Field Office Director proposed to suspend Complainant for three days without pay for an incident that occurred in 2009. However, on October 22, 2015, Complainant learned that the decision on the proposal was 2020003309 3 determined to be “No Action.” Complainant believed that the proposal was part of the continued harassment; 12. on March 18, 2016, while at Complainant’s 2nd Quarter Firearms Qualifications, a Senior Firearms Instructor (SFI) addressed Complainant as “Cupcake,” in front of other agents. Complainant perceived the term to label someone indirectly as a homosexual to humiliate him in front of other agents; 13. on March 18, 2016, while at Complainant’s 2nd Quarter Firearms Qualifications, SFI came from behind Complainant and placed his hands on Complainant’s shoulder blades, pulled him back slightly and said, “Slow down [your] shooting,” and “You are shooting the gun like a machine gun. What are you on this morning?” The comments made Complainant feel that SFI was trying to put unwanted stress on him and insinuating that Complainant was on drugs; 14. on or about June 27, 2016, while at Complainant’s 3rd Quarter Firearms Qualifications, Complainant informed a Firearms Instructor (FI) that two screws were missing from his firearm, and FI responded, “You are definitely missing two screws. That is an understatement.” FI then walked away smirking and laughing; 15. on June 27, 2016, after asking SFI for oil to lubricate the barrel of his firearm, SFI responded by asking, “What? You don’t have any oil?” in a condescending and unprofessional manner; 16. on June 27, 2016, another Firearms Instructor accused Complainant of calling her a cheater and she subsequently lowered his shooting score; and 17. on December 11, 2016, management denied Complainant’s request to adjust his shift on December 11, 2016, so that he could get adequate sleep prior to reporting to Defensive Tactics Training on Monday, December 12, 2016. After its investigation into the complaint, the Agency provided Complainant with copies of the reports of investigation and notices of his right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested hearings. The AJ granted Complainant’s unopposed motion to consolidate his complaints. The Agency submitted a motion for a decision without a hearing, which Complainant opposed. The AJ subsequently issued a consolidated decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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). 2020003309 4 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). In order 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 he 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 provided ten documents as evidence, but he did not provide any arguments on appeal and has failed to establish such a dispute.2 Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, and Complainant’s appeal documents, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2 Complainant requested an extension to file an appeal brief; however, his request was denied because it was submitted after his statutory deadline to file his appeal brief. 2020003309 5 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). 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. 2020003309 6 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 April 8, 2021 Date
