U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elliot J.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal Nos. 2022000369 2022000705 Hearing Nos. 570-2021-01026X 570-2021-01350X Agency No. HS-ICE-01304-2020 DECISION Complainant filed two appeals with the Equal Employment Opportunity Commission (EEOC or Commission),2 pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 21, 2021,3 final action concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 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. 2 The Commission may, in its discretion, consolidate two or more complaints of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606. We note that Complainant’s appeals reference the same Agency case number (HS-ICE-01304-2020); accordingly, the Commission exercises its discretion to consolidate the captioned cases into one decision. 3 EEOC regulations state that an Administrative Judge’s (AJ’s) decision becomes an Agency’s final action if it does not issue a final order within 40 days. 29 C.F.R. 1614.110(i). The AJ issued a decision on October 12, 2021, and the Agency did not issue a final order. As such, the AJ’s decision became the Agency’s final action on November 21, 2021. 2022000369 & 202200705 2 as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant was a former Agency employee. On May 21, 2020, Complainant filed an EEO complaint alleging that the Agency subjected him to harassment based on disability (mental and physical) and sex (male), and in reprisal for prior protected EEO activity, when: 1. on unspecified dates, but prior to 2019 through the present, a Senior Attorney covered up a white supremist cheering the murder of 22 Hispanics; 2. on unspecified dates, beginning prior to 2019 and continuing to the present, a Senior Attorney threatened Complainant, either directly by telephone or through other persons; 3. on or around late March to April 2020, Complainant became aware that he was not selected, and he did not receive guaranteed placement, for any GS-12 position for which he had applied; and 4. on or around late March to April 2020, Complainant became aware that a Senior Attorney and a Field Office Director stole his Office of Personnel Management disability application, thereby preventing him from obtaining disability retirement. On or around July 16, 2020, the Agency accepted the above claims for investigation.4 The Agency dismissed seven additional claims raised by Complainant for untimely contact with an EEO Counselor or for failure to state a claim. For example, Complainant’s allegation that a Senior Attorney and a Field Office Director conspired to threaten witnesses to prevent them from appearing in court failed to state a claim. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On September 22, 2021, the AJ issued a Notice of Intent to Issue Summary Judgment. As an initial matter, the AJ found that Complainant did not establish that he was aggrieved because he failed to show that he suffered a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. The AJ noted that Complainant failed to specify any dates or position for which he was denied employment, nor provided any examples of alleged threats made by the Senior Attorney. Complainant merely contended that the evidence is “in the record” and that the Senior Attorney paid others “to threaten people from reporting.” The AJ also found that the record was devoid of any evidence to support Complainant’s allegation that someone stole his retirement application. 4 The Agency’s acceptance letter included two additional claims, but they were duplicates of claims 1 and 2. 2022000369 & 202200705 3 Even assuming that Complainant could state a claim, the AJ found that he could not establish a prima facie case of discrimination. For example, Complainant’s retaliation claim failed because his reporting of a prostitution or drug ring is not protected EEO activity. Further, Complainant’s reporting occurred in 2015, which was at least four years prior to the claims at issue, and far too attenuated to create an inference of retaliation. The AJ notified the parties that any response to the notice was due by October 7, 2021. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ noted that Complainant’s response did not address the substance of the notice. After considering the entire record, the AJ concluded that summary judgment for the Agency was appropriate. When the Agency did not issue a final order, the AJ’s decision became the Agency’s final action. The instant appeals followed, and Complainant submitted statements in support of his appeals. The Agency opposed one of Complainant’s appeals. 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. (Aug. 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 has failed to establish such a dispute. We note that for appeal number 2022000369, Complainant appears to challenge the Agency’s procedural dismissals. However, Complainant did not provide any arguments to show that the Agency erred in dismissing those claims for untimely contact or for failure to state a claim. In addition, Complainant requested sanctions against the Commission and the Agency for his dissatisfaction with the processing of his EEO complaint, but Complainant only offers unsubstantiated allegations of criminal activity. As such, we decline to issue sanctions. In his brief for appeal number 2022000705, Complainant makes additional baseless accusations against individuals at the Commission and the Agency. Regarding the merits of the accepted claims, Complainant provides arguments but no evidence. 2022000369 & 202200705 4 For example, for claim 1, Complainant asserts that the EEO Investigator has copies of “the white supremacy papers and memes and the threats.” However, mere allegations, speculations, and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), req. for recon. denied, EEOC Request No. 05A10914 (Oct. 1, 2001). Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, 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. 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. 2022000369 & 202200705 5 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. 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. 2022000369 & 202200705 6 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 October 11, 2022 Date
