Wen Y.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.

Equal Employment Opportunity Commission

Oct 17, 2018

0120182207 (E.E.O.C. Oct. 17, 2018)

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

Wen Y.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.

Appeal No. 0120182207

Hearing No. 450201500046X

Agency No. HSCIS0005920132

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s
appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 11, 2018, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. We AFFIRM the Agency’s finding of no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory Operation
Support Specialist, GS-0301-14, at the Agency’s Texas Service Center facility in Dallas, Texas.

On December 8, 2012, Complainant filed a formal complaint alleging that the Agency subjected
her to harassment on the bases of race (African-American), color (black), and age (over 40) 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.
2 On June 10, 2014, the Agency consolidated case numbers HS-CIS-00512-2014 (secondary) with
HS-CIS-00059-2013 (primary).
0120182207

2
1. Beginning in 2008, she was bypassed in emails from management to her staff, most
recently occurring on September 11, 2012;

2. From December 2008 through October 2011, another manager spoke for her in weekly
staff meetings;

3. During fiscal year 2011, she received a negative 360 performance review;

4. On July 18, 2011, she was blamed for a staff member’s departure and told she needed
to improve her communication skills;

5. Beginning in 2010, she was asked about when she was planning to retire; and

6. In June 2011, she was given her 25-year pin months early.

In a final decision dated April 8, 2013, the Agency dismissed claim (1) for failure to state a claim.
The Agency stated that the alleged incidents set forth in claim (1) did not set forth a harm or loss
with respect to a term, condition, or privilege of Complainant’s employment. The Agency also
dismissed claims (2) to (6). The Agency found that Complainant failed to contact an EEO
counselor within 45-days of an alleged discriminatory incident.

Complainant appealed the dismissal to the Commission. On September 5, 2013, the Commission
remanded the case for further processing. Complainant v. Department of Homeland Security,
EEOC Appeal No. 0120132158 (Sept. 5, 2013), request for reconsideration denied, EEOC Request
No. 0520140051 (April 3, 2014). In reversing the Agency’s decision, the Commission found that
claim (1) should not be dismissed as it was part of Complainant’s claim of harassment and that at
least one alleged incident of discrimination occurred within the 45-day time-period preceding
Complainant’s contact with an EEO counselor on October 5, 2012. Id. Thus, the Commission
found that Complainant’s allegations were actionable as a hostile work environment claim. Id.

On April 11, 2014, Complainant filed a second formal complaint. She alleged that the Agency
subjected her to harassment on the bases of race (African-American), color (black), age (over 40),
and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and
the Age Discrimination in Employment Act of 1967 when:

7. On January 7, 2014, she received a counseling letter for “willfully ignoring established
counseling procedures” when she did not document in writing the verbal counseling of
a subordinate employee;

8. On March 24, 2014, she was again given written counseling; and

9. On March 31, 2014, a negative comment was made about her in front of other
managers.

0120182207

3
On June 10, 2014, the Agency consolidated Complainant’s formal complaints and accepted the
case for investigation. Following the investigation, an EEOC Administrative Judge (AJ) entered
summary judgment in favor of the Agency on April 30, 2018, without holding a hearing. In
granting the Agency’s motion for summary judgment, the AJ found that there was no genuine
dispute of material fact as to Complainant’s claims because they constituted common work place
occurrences and were not severe or pervasive enough, either singly or collectively, to constitute
harassment. Therefore, the AJ concluded that Complainant was not subjected to discrimination
on any basis. On May 11, 2018, the Agency issued a decision adopting the AJ’s decision.

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
determined 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 weight the
evidence, but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the nonmoving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the nonmoving 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
nonmoving 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, summary judgment
is not appropriate. In the context of an administrative proceeding, an AJ may properly consider
summary judgment only upon a determination that the record has been adequately developed for
summary disposition.

Here, we agree with the AJ’s decision to issue summary judgment. For the purposes of our
analysis, we assume that the events occurred as Complainant described and were unwarranted.
However, Complainant has not shown that the conduct occurred because of discrimination. The
Commission notes that Title VII or the ADEA are not civility codes. Rather, it forbids “only
behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale
v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). While Complainant may have had a
tenuous relationship with her supervisors, she has not shown that their conduct had the purpose or
effect of unreasonably interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment. Therefore, we find that the AJ correctly issued summary
judgment in favor of the Agency.

0120182207

4
After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's
final order, because the Equal Employment Opportunity Commission Administrative Judge’s
issuance of a decision without a hearing was appropriate and a preponderance of the record
evidence does not establish that discrimination occurred.

CONCLUSION

We AFFIRM the Agency’s final order finding no discrimination.

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).

0120182207

5
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

October 17, 2018
Date