Verna G.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Nov 30, 2018

0120171451 (E.E.O.C. Nov. 30, 2018)

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

Verna G.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120171451

Hearing No. 520-2016-00093X

Agency No. HS-CBP-02701-2015

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 Agency’s February 16, 2017, 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. For the following reasons, the Commission AFFIRMS the Agency’s final
order.

ISSUES PRESENTED

The issues presented are whether the EEOC Administrative Judge 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 beginning of the period of time giving rise to this complaint, Complainant worked as a
Customs and Border Protection Officer (CBPO), GS-12, at New York Stewart International
Airport within the Agency’s New York Field Office, Office of Field Operations.

In an email to a coworker (C1) dated November 21, 2014, Complainant stated that her coat was
missing from the coat rack and C1 was the only one in the office with her. She further stated that
the person who took her coat should tell his/her girlfriend she wants her coat back, she might have
put a hex on the coat, and the thief might get the Ebola virus. The email was copied to management
officials.

C1 reported Complainant’s email as harassment. On December 4, 2014, the Agency issued
Complainant a cease and desist letter that instructed her to not send correspondences to C1. At
that time, the Agency also reassigned Complainant from Stewart International Airport to
Westchester Airport while it investigated the harassment allegation against her. On January 14,
2015, management received an official Internal Affairs allegation that Complainant is “allegedly
unstable and creates a toxic work environment.” On January 21, 2015, the Agency reassigned
Complainant to Newark Liberty International Airport (Newark). Also on January 21, 2015,
Complainant initiated EEO counseling for the instant complaint. On March 17, 2015, management
notified Complainant she was the subject of an administrative inquiry.

On April 19, 2015, Complainant filed an EEO complaint in which she alleged that the Agency
discriminated against her on the bases of race (African-American) and in reprisal for prior
protected EEO activity arising under Title VII when:

1. In January 2015, a supervisor (S1) made negative comments regarding
Complainant’s military duty;

2. On January 21, 2015, management reassigned Complainant to the Newark
International Airport Port of Entry, New York Field Office;

3. Following Complainant’s arrival in Newark in January 2015, supervisors failed to
renew Complainant’s driving credentials for Newark International Airport, which
prevented her from obtaining overtime assignments, participating in temporary
duty assignments, and receiving superior achievement awards;

4. On March 28, 2015, another supervisor informed Complainant that she was the
subject of an administrative inquiry;

5. On April 9, 2015, the administrative inquiry concluded favorably for Complainant;
however, she remained assigned to Newark International Airport and received no
response from management regarding her concern about being assigned there;

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6. Beginning on April 17,2015, management denied Complainant’s requests for
Leave Without Pay (LWOP) and placed her in Absent Without Leave (AWOL)
status; and

7. On June 23, 2015, management asked Complainant to participate in an
administrative inquiry into the same matter that was the subject of the March/April
administrative inquiry.

Regarding claim 1, in an investigative statement, Complainant stated that about a week before her
second reassignment, she told S1 she was giving him a “heads up” about her going on military
leave for a couple weeks. Complainant further stated that S1 seemed visually annoyed by the
information and said that it was “mere convenience” that she would leave on military orders when
the Agency needed her most. She further stated that as he walked away S1 said, “You’re no good
to me; you’re always out on military duty.”

Regarding claim 2, Complainant stated that on January 21, 2015, S1 informed her that she would
immediately be reassigned to Newark Liberty International Airport. She stated that when she
asked why she was being reassigned, S1 said nothing in response but later denied it was because
C1 had filed a new complaint against her. Complainant stated that Newark International Airport
is a 100-mnute commute from her house and costs up to $100 daily for gas and tolls.

Regarding claim 3, Complainant stated that S1 has failed to renew her driving credentials since
she was reassigned to Newark. She further stated that the Agency does not permit employees to
drive without proper driving credentials. With respect to claims 4 and 7, Complainant stated that
the Chief’s administrative inquiry was supposed to be about the email she sent to C1, and during
her interview, she was unable to explain the situation that led to her writing the email. She stated
that the Chief was only interested in her answers to prepared questions, and he was not interested
in hearing her side of the story. Complainant further stated that she was subsequently asked to
participate in another management inquiry, but she chose not to participate in that inquiry.

Regarding claim 5, Complainant stated that at the administrative inquiry in April 2015, the Chief
stated that he would recommend that she be placed back into her former assignment. Complainant
further stated that she then brought her concern about still being assigned to Newark to the attention
to management officials in an email, but no one replied.

Regarding claim 6, Complainant stated that she requested LWOP through her chain of command,
and she was told by a supervisor (S2) that her request was denied by the Port Director (Director).
She stated that she requested LWOP because she could no longer afford to report for duty with the
cost for parking, tolls, and gas. She further stated that she needed a week to borrow money, and
management could have placed her at a worksite that would have been less of a hardship on her,
or granted her LWOP. Complainant also stated that she requested reimbursement for her expenses
and fees, but her request was denied.

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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 AJ. Complainant timely
requested a hearing. On November 18, 2016, the AJ issued an Acknowledgment Order and Notice
of Intent to issue a Decision without a Hearing. On January 6, 2017, Complainant and the Agency
responded to the AJ’s Notice. The AJ issued a decision without a hearing on January 23, 2017. In
that decision, the AJ found that Complainant did not prove she was subjected to unlawful
discrimination or harassment. The Agency subsequently issued a final order fully adopting the
AJ’s findings.

CONTENTIONS ON APPEAL

On appeal Complainant essentially reasserts allegations made during the investigation and in her
response to the AJ’s Notice of Intent to issue a Decision without a Hearing. The Agency requests
that we affirm its final order.

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).
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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
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).

Upon review, we determine that there is no evidence from which a reasonable fact-finder could
conclude that there is an inference of race discrimination here, such as evidence that similarly
situated individuals were treated more favorably than Complainant under similar circumstances.
Further, even if we assume arguendo that Complainant established prima facie cases of race
discrimination and reprisal, we nonetheless find that the Agency provided legitimate
nondiscriminatory reasons for its actions.

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Specifically, regarding claim 1, S1 stated that he was unaware of having made negative comments
to Complainant, but as a first-line supervisor he has the duty to verify military orders for staffing
and coding purposes so that reservists are paid appropriately. He further stated that he questioned
Complainant about three separate sets of orders that were in effect around the same period of time
to verify which dates were correct.

Regarding claim 2, the Port Director stated that Complainant was reassigned to Newark because
of the allegation she had harassed another employee. The Director stated that Complainant was
initially assigned to Stewart Airport, but it was later decided that Newark Airport was the most
appropriate location for her. She stated that because of the seriousness of the allegations it was
determined that Complainant should be reassigned to a location such as Newark, where she would
receive consistent supervision. The Assistant Port Director (APD) stated that Complainant was
reassigned because on January 14, 2015, management received the official Internal Affairs report,
which contained allegations that Complainant was unstable and created a toxic work environment.

Regarding claim 3, APD stated that she was unaware Complainant needed to renew her driving
credentials. She further stated that it is the responsibility of all employees to renew their Port
Authority identifications and driving credentials. She stated that Complainant should have reached
out to the Identification Officer to renew her driving credentials. S1 stated that he was unaware
that Complainant needed to renew her driving credentials, but every officer is responsible for
renewing their credentials annually.

The Acting Deputy Chief (ADC) stated that on March 25, 2015, he received an email from
Complainant asking when she would be attending the driving class, and ADC put her in contact with
the officer responsible for scheduling it. He stated that Complainant was then scheduled for and
attended the SIDA Class (Security Training) on April 3, 2015. ADC stated that the driving classes
occur with much less frequency, and the last class occurred on March 2, 2015, prior to Complainant’s
completion of the prerequisite SIDA Class. ADC stated that there was an upcoming driving class to
which Complainant would be scheduled to attend.

Regarding claims 5 and 7, APD stated that at that the time of her statement, the administrative
inquiry had not favorably concluded towards Complainant. She stated that the inquiry was pending
review because of discipline recommended against Complainant. APD further stated that on April
23, 2015, management received a formal allegation from Internal Affairs that Complainant had
been subjected to harassment and retaliation by S1, and APD assigned a Deputy Chief Officer to
conduct an inquiry on Complainant’s allegations. She stated that Complainant was asked to
participate in an inquiry regarding her allegations which was distinct from the first inquiry of
allegations against her.

Regarding claim 6, APD stated that she provided Complainant with options to assist her with
parking fees and to apply for public transportation subsides. S1 stated that he was unaware that
Complainant’s commute to Newark was causing her financial hardship, but upper management
proved her with different options to assist her with cost.

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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 it is undisputed that most of the incidents in this case
were precipitated by an email in which Complainant strongly suggested that a coworker had stolen
her coat. Additionally, Complainant implied a threat against the coworker by stating the coat
might have a “hex” on it or give him Ebola. The email was copied to management, and the incident
was reported as harassing. As such, the Agency had a duty to respond promptly and appropriately
to the alleged harassment. We find that the Agency’s response was reasonable under these
circumstances. Additionally, it is undisputed that the Agency provided Complainant with options
to assist her with commuting costs during her reassignment. Regarding driving credentials,
Complainant has not rebutted management’s assertion that she attended the prerequisite class for
the driving class, and was subsequently scheduled to attend a driving class shortly thereafter. 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 AFFRM the Agency’s final order for the reasons set
forth in this decision.

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.
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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.
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 30, 2018
Date