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

Equal Employment Opportunity Commission

Oct 25, 2018

0120182191 (E.E.O.C. Oct. 25, 2018)

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