Vina D.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.Download PDFEqual Employment Opportunity CommissionOct 25, 20180120182191 (E.E.O.C. Oct. 25, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vina D.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 0120182191 Hearing No. 570-2016-00891X Agency No. HS-ICE-02240-2014 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the EEOC Administrative Judge (AJ)’s decision dated April 9, 2018, which effectively became the Agency’s final decision finding no discrimination regarding her 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, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Criminal Investigator/Section Chief, GS-1811-14, at the Agency’s U.S. Immigration and Customs Enforcement (ICE), Homeland Security Investigations, Division II, Financial Crimes in Washington, D.C. On January 12, 2015, Complainant filed her complaint, which was later amended, alleging discrimination in reprisal for prior 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. 0120182191 2 (1) On April 15, 2015, she was issued a Letter of Reprimand for conduct unbecoming of an ICE Supervisor based on the findings of an investigation into sexual harassment allegations; and (2) On May 14, 2015, she was reassigned from the position of Supervisory Criminal Investigator to a Program Manager based on the same findings.2 Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC AJ. On November 16, 2017, the Agency filed a Motion for Summary Judgment and Complainant filed an Opposition to the Agency’s Motion on December 1, 2017. On December 7, 2017, the Agency filed its Reply to Complainant’s Opposition. On April 9, 2018, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency did not issue its final order and thus the AJ’s decision effectively became the Agency’s final decision. 29 C.F.R. § 1614.109(i). Complainant appeals. ANALYSIS AND FINDINGS 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. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. 2 We note that Complainant also alleged in her complaint, which was later amended, claims 1 – 11 based on race, sex, and in reprisal for prior EEO activity. During the hearing, in her Opposition to Agency’s Motion for Summary Judgment, Complainant withdrew the bases of race and sex and claims 1 – 7 and 11. Thus, we need not discuss these withdrawn claims in this decision. Furthermore, the AJ, agreeing with the Agency, dismissed claim 10 for failure to state a claim. We find the subject claim, concerning her mere arguments regarding the Agency’s actions as detailed in her complaint, in and of itself, does not state a viable claim. Thus, we find the Agency’s dismissal of claim 10 was proper pursuant to 29 C.F.R. § 1614.107(a)(1). On appeal, Complainant does not dispute this dismissal. The two accepted claims 8 and 9 have been renumbered for this decision as claims 1 and 2 identified above. 0120182191 3 In the instant case, the AJ adopted and incorporated by reference the Facts in the Agency’s Motion for Summary Judgment into her decision. The record indicates that on May 23, 2013, the Agency received an allegation from an anonymous source, who was later found to be Complainant’s subordinate, that Complainant was sexually harassing employees by making inappropriate comments of a sexual nature in the workplace. The Agency’s Joint Intake Center investigated the subject sexual harassment complaint and interviewed employees, multiple witnesses, and Complainant, who also submitted affidavits. After the investigation findings were issued, the Agency’s Discipline and Adverse Action Panel (DAAP) recommended a 10-day suspension for Complainant for conduct unbecoming of an ICE Supervisor. On April 15, 2015, the Agency Deputy Assistant Director mitigated the proposed 10-day suspension to a Letter of Reprimand, described in claim (1). The Director took into consideration Complainant’s 18 years and 10 months of service at the Agency and her excellent performance rating in reducing the discipline to a Letter of Reprimand. Furthermore, based on Complainant’s conduct she was reassigned, as described in claim (2), from her GS-14, Supervisory position in Investigative Service Division, to a GS-14, Program Manager in Financial, Narcotics, and Special Operations Division. After a review of the record, we find that the record is adequately developed and there are no material facts in dispute. We also find that the AJ properly found that the complaint was properly decided without a hearing and that the AJ properly adopted the Agency’s statement of undisputed facts. Upon review, the AJ found and we agree that there is no evidence that the Agency’s articulated reasons were untrue or otherwise indicative of pretext. Furthermore, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 0120182191 4 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. 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. 0120182191 5 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 October 25, 2018 Date Copy with citationCopy as parenthetical citation