U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Belia A.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Appeal No. 2020005411 Hearing No. 520-2019-00574X Agency No. HS-CIS-02085-2018 DECISION On September 23, 2020, 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 August 19, 2020,2 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Immigration Services Officer, GS-1801-07, at the Agency’s Vermont Service Center in Essex, Vermont. She entered duty on October 29, 2017, subject to a one-year probationary period. 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 Although the Agency’s final order is dated August 19, 2020, the record reflects that the Agency served the final order on August 24, 2020. 2020005411 2 On September 11, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), color (Black), disability (mental and physical), and reprisal for prior protected EEO activity when, from November 2017 through August 2018, she was subjected to the following incidents: 1. Management failed to take action with respect to incidents where coworkers harassed her based upon alleged hygiene issues; 2. Denied her training; 3. Made inappropriate comments to her; 4. Denied her telework; 5. Discussed her performance in front of colleagues; and 6. Reprimanded her for an incident for which she should not have been reprimanded. Approximately a week after filing her EEO complaint, on September 19, 2018, Complainant was removed from federal service during her probationary period. Two months later, the Agency accepted all of Complainant’s claims, as listed above, for investigation. The Agency’s Notice of Acceptance, however, made no mention of Complainant’s removal from federal service. Although Complainant was afforded seven calendar days, after receipt of the notice, to challenge the Agency’s framing of her complaint, Complainant did not dispute how the claims were defined. At the conclusion of 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. Prior to the prehearing conference, the parties submitted statements to the AJ assigned to the matter. Notably, in her prehearing statement and subsequent amended prehearing statement, Complainant did not list her probationary removal as one of the claims to be decided. The Agency subsequently filed a motion for a decision without a hearing on June 8, 2020. On June 24, 2020, Complainant filed an opposition to the Agency’s motion. In opposing the Agency’s motion, Complainant argued that there were sufficient genuine issues of material fact in dispute to preclude the issuance of a decision without a hearing. For the first time, Complainant also argued that she had been unlawfully removed from federal service. The Agency filed a reply arguing, in relevant part, that Complainant’s removal was not at issue because she never raised it during the prehearing phase nor included it in her prehearing statement. On June 29, 2020, Complainant requested leave to file a sur-reply and to amend her complaint to include the removal claim. The Agency opposed Complainant’s motion. On July 3, 2020, the AJ denied Complainant’s request on the grounds that the “Agency’s reply memorandum presented no new matters justifying a sur-reply.” See AJ’s Decision at fn. 2. The AJ also denied Complainant’s request to amend “as untimely.” Id. 2020005411 3 Over Complainant’s objections, the AJ assigned to the case granted the Agency’s June 8, 2020, motion for a decision without a hearing and issued a decision without a hearing on July 17, 2020. The Agency then issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. On appeal, Complainant largely reiterates the same contentions that she previously raised in her opposition. Specifically, Complainant argues, in relevant part, that the AJ wrongly excluded the removal claim. Complainant also points to several alleged inconsistencies in the record that she believes necessitate a hearing to resolve. The Agency opposes the appeal, and requests that the Commission affirm its final order. In so arguing, the Agency initially reiterates that Complainant’s removal claim is not at issue on appeal because Complainant failed to properly raise it. As for the merits of the complaint, the Agency asserts that the record is devoid of any evidence of harassment and maintains that the Agency promptly investigated Complainant’s allegations as soon as she raised them. As such, the Agency contends that Complainant failed her burden of proving discrimination. 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. (as revised, August 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 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. 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, 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. 2020005411 4 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. 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). 2020005411 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 March 17, 2022 Date
