U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Pedro C.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2020004259 Hearing No. 520-2019-00303X Agency No. HS-ICE-00817-2018 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 July 16, 2020, final order concerning his 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. During the relevant time, Complainant worked as a Criminal Investigator/Special Agent for the Agency’s Homeland Security Investigations in Newark, New Jersey. In November 2016, the Assistant Special Agent in Charge (ASAC-1) (Hispanic, Puerto Rican) informed Complainant that he would be reassigned from the Alien Smuggling and Fraud Group to the Narcotics Group at Newark Liberty International Airport. Complainant stated that he requested to remain in his current group to complete a significant case, but ASAC-1 denied his request and his cases were reassigned to other agents. Report of Investigation (ROI) at 66. On April 9, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian) and national origin (European) when on November 28, 2016, management reassigned him from the main office in Newark to a work group located 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. 2020004259 2 at the Newark Airport. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ found that Complainant’s reassignment was part of a staff reorganization that was prompted, at least in part, by a shortage of personnel at the airport location, and at least 18 staff were affected by the reorganization, including Complainant. The AJ then determined that Complainant’s assertions, that his race and/or national origin played a role, amounted to mere speculation. While Complainant contended he was not given a choice of groups for his transfer, and an African American coworker (CW) was able to choose from three groups when she transferred, the AJ noted that the record showed that CW objected to her original group assignment because of prior issues she had with personnel assigned to that group. There was no evidence that CW was given a choice when she was assigned to the Gangs Group, stated the AJ, or that she was presented with three groups to choose from. In addition, the AJ determined that Complainant did not prove pretext when he was not allowed take a significant case with him to his new post at the airport or twice denied a promotion. The AJ also found that there was no evidence from which a reasonable inference of discrimination could be drawn, when the Agency requested information to assess Complainant’s request for a medical hardship. The Agency approved the request upon submission of the additional information.2 The AJ concluded that there was no genuine issue of material facts in dispute and granted the Agency’s Motion for Summary Judgment. The Agency issued a final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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). 2 While Complainant raised additional issues during the litigation of his complaint, there is no evidence that he moved to amend his complaint to include additional claims, either during the processing of the complaint or the hearing stage. Nevertheless, the AJ addressed them in his decision. 2020004259 3 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 he 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. On appeal, Complainant argues that there were many disputed facts. For example, Complainant asserts that his move, as part of a reorganization, was “not dispositive” and questions its legitimacy. However, Complainant did not cite to any evidence to dispute the Agency’s proffered legitimate, nondiscriminatory reason for his reassignment, and he agreed that the airport was in need of additional staff. Complainant Deposition at 116. While Complainant argues that CW told him that she was offered three choices of work groups, we note that CW did not provide any sworn testimony for Complainant’s complaint and Complainant provided no evidence that CW was offered three choices. Further, another Assistant Special Agent in Charge (ASAC-2) averred that, when CW received her reassignment, she contacted him to disclose concerns that an agent within that division made unwanted advances and displayed stalker-like behavior. Given CW’s unique situation, ASAC-2 discussed possible options with her, but he denied giving her three choices. ASAC-2 stated that he eventually placed CW into her last choice of assignment. ROI at 161. Complainant testified that he read ASAC-2’s explanation regarding CW’s situation but did not “know if it was true or not”, and that he “didn’t remember seeing” ASAC-2’s statement that he assigned CW to a group that she did not want to go to. Complainant Deposition at 68, 70. Complainant also made general claims that Black and Hispanic agents were treated more favorably, but again, he cited to no evidence to show that any purported favorable treatment was due to an agent’s race or national origin. As noted by the AJ, Complainant only provided speculation, without any evidence from the record to establish a genuine dispute of a material fact. However, mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Security, EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). 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, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2020004259 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). 2020004259 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 January 24, 2022 Date
