Verna G.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.Download PDFEqual Employment Opportunity CommissionNov 30, 20180120171451 (E.E.O.C. Nov. 30, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Verna G.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 0120171451 Hearing No. 520-2016-00093X Agency No. HS-CBP-02701-2015 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 February 16, 2017, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUES PRESENTED The issues presented are whether the EEOC Administrative Judge properly issued a decision without a hearing, and whether the AJ properly found that Complainant did not prove she was subjected to unlawful discrimination or harassment. 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. 0120171451 2 BACKGROUND At the beginning of the period of time giving rise to this complaint, Complainant worked as a Customs and Border Protection Officer (CBPO), GS-12, at New York Stewart International Airport within the Agency’s New York Field Office, Office of Field Operations. In an email to a coworker (C1) dated November 21, 2014, Complainant stated that her coat was missing from the coat rack and C1 was the only one in the office with her. She further stated that the person who took her coat should tell his/her girlfriend she wants her coat back, she might have put a hex on the coat, and the thief might get the Ebola virus. The email was copied to management officials. C1 reported Complainant’s email as harassment. On December 4, 2014, the Agency issued Complainant a cease and desist letter that instructed her to not send correspondences to C1. At that time, the Agency also reassigned Complainant from Stewart International Airport to Westchester Airport while it investigated the harassment allegation against her. On January 14, 2015, management received an official Internal Affairs allegation that Complainant is “allegedly unstable and creates a toxic work environment.” On January 21, 2015, the Agency reassigned Complainant to Newark Liberty International Airport (Newark). Also on January 21, 2015, Complainant initiated EEO counseling for the instant complaint. On March 17, 2015, management notified Complainant she was the subject of an administrative inquiry. On April 19, 2015, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of race (African-American) and in reprisal for prior protected EEO activity arising under Title VII when: 1. In January 2015, a supervisor (S1) made negative comments regarding Complainant’s military duty; 2. On January 21, 2015, management reassigned Complainant to the Newark International Airport Port of Entry, New York Field Office; 3. Following Complainant’s arrival in Newark in January 2015, supervisors failed to renew Complainant’s driving credentials for Newark International Airport, which prevented her from obtaining overtime assignments, participating in temporary duty assignments, and receiving superior achievement awards; 4. On March 28, 2015, another supervisor informed Complainant that she was the subject of an administrative inquiry; 5. On April 9, 2015, the administrative inquiry concluded favorably for Complainant; however, she remained assigned to Newark International Airport and received no response from management regarding her concern about being assigned there; 0120171451 3 6. Beginning on April 17,2015, management denied Complainant’s requests for Leave Without Pay (LWOP) and placed her in Absent Without Leave (AWOL) status; and 7. On June 23, 2015, management asked Complainant to participate in an administrative inquiry into the same matter that was the subject of the March/April administrative inquiry. Regarding claim 1, in an investigative statement, Complainant stated that about a week before her second reassignment, she told S1 she was giving him a “heads up” about her going on military leave for a couple weeks. Complainant further stated that S1 seemed visually annoyed by the information and said that it was “mere convenience” that she would leave on military orders when the Agency needed her most. She further stated that as he walked away S1 said, “You’re no good to me; you’re always out on military duty.” Regarding claim 2, Complainant stated that on January 21, 2015, S1 informed her that she would immediately be reassigned to Newark Liberty International Airport. She stated that when she asked why she was being reassigned, S1 said nothing in response but later denied it was because C1 had filed a new complaint against her. Complainant stated that Newark International Airport is a 100-mnute commute from her house and costs up to $100 daily for gas and tolls. Regarding claim 3, Complainant stated that S1 has failed to renew her driving credentials since she was reassigned to Newark. She further stated that the Agency does not permit employees to drive without proper driving credentials. With respect to claims 4 and 7, Complainant stated that the Chief’s administrative inquiry was supposed to be about the email she sent to C1, and during her interview, she was unable to explain the situation that led to her writing the email. She stated that the Chief was only interested in her answers to prepared questions, and he was not interested in hearing her side of the story. Complainant further stated that she was subsequently asked to participate in another management inquiry, but she chose not to participate in that inquiry. Regarding claim 5, Complainant stated that at the administrative inquiry in April 2015, the Chief stated that he would recommend that she be placed back into her former assignment. Complainant further stated that she then brought her concern about still being assigned to Newark to the attention to management officials in an email, but no one replied. Regarding claim 6, Complainant stated that she requested LWOP through her chain of command, and she was told by a supervisor (S2) that her request was denied by the Port Director (Director). She stated that she requested LWOP because she could no longer afford to report for duty with the cost for parking, tolls, and gas. She further stated that she needed a week to borrow money, and management could have placed her at a worksite that would have been less of a hardship on her, or granted her LWOP. Complainant also stated that she requested reimbursement for her expenses and fees, but her request was denied. 0120171451 4 After 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 EEOC AJ. Complainant timely requested a hearing. On November 18, 2016, the AJ issued an Acknowledgment Order and Notice of Intent to issue a Decision without a Hearing. On January 6, 2017, Complainant and the Agency responded to the AJ’s Notice. The AJ issued a decision without a hearing on January 23, 2017. In that decision, the AJ found that Complainant did not prove she was subjected to unlawful discrimination or harassment. The Agency subsequently issued a final order fully adopting the AJ’s findings. CONTENTIONS ON APPEAL On appeal Complainant essentially reasserts allegations made during the investigation and in her response to the AJ’s Notice of Intent to issue a Decision without a Hearing. The Agency requests that we affirm its final order. ANALYSIS AND FINDINGS We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep’t of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). According to the Supreme Court, Rule 56 itself precludes summary judgment “where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). 0120171451 5 After a careful review of the record we find that there was no genuine issue of material fact or credibility that warrants a hearing. The AJ found that the undisputed record, including the complaint, sworn testimony, Report of Investigation, and all submissions of the parties, was comprehensive, complete, impartial, and constituted an appropriate basis upon which to render a decision without a hearing in favor of the Agency. We agree, and therefore find that a decision without a hearing was appropriate. Disparate Treatment and Harassment Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For a complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts to the complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, the complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983). In order to establish a claim of hostile-environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Upon review, we determine that there is no evidence from which a reasonable fact-finder could conclude that there is an inference of race discrimination here, such as evidence that similarly situated individuals were treated more favorably than Complainant under similar circumstances. Further, even if we assume arguendo that Complainant established prima facie cases of race discrimination and reprisal, we nonetheless find that the Agency provided legitimate nondiscriminatory reasons for its actions. 0120171451 6 Specifically, regarding claim 1, S1 stated that he was unaware of having made negative comments to Complainant, but as a first-line supervisor he has the duty to verify military orders for staffing and coding purposes so that reservists are paid appropriately. He further stated that he questioned Complainant about three separate sets of orders that were in effect around the same period of time to verify which dates were correct. Regarding claim 2, the Port Director stated that Complainant was reassigned to Newark because of the allegation she had harassed another employee. The Director stated that Complainant was initially assigned to Stewart Airport, but it was later decided that Newark Airport was the most appropriate location for her. She stated that because of the seriousness of the allegations it was determined that Complainant should be reassigned to a location such as Newark, where she would receive consistent supervision. The Assistant Port Director (APD) stated that Complainant was reassigned because on January 14, 2015, management received the official Internal Affairs report, which contained allegations that Complainant was unstable and created a toxic work environment. Regarding claim 3, APD stated that she was unaware Complainant needed to renew her driving credentials. She further stated that it is the responsibility of all employees to renew their Port Authority identifications and driving credentials. She stated that Complainant should have reached out to the Identification Officer to renew her driving credentials. S1 stated that he was unaware that Complainant needed to renew her driving credentials, but every officer is responsible for renewing their credentials annually. The Acting Deputy Chief (ADC) stated that on March 25, 2015, he received an email from Complainant asking when she would be attending the driving class, and ADC put her in contact with the officer responsible for scheduling it. He stated that Complainant was then scheduled for and attended the SIDA Class (Security Training) on April 3, 2015. ADC stated that the driving classes occur with much less frequency, and the last class occurred on March 2, 2015, prior to Complainant’s completion of the prerequisite SIDA Class. ADC stated that there was an upcoming driving class to which Complainant would be scheduled to attend. Regarding claims 5 and 7, APD stated that at that the time of her statement, the administrative inquiry had not favorably concluded towards Complainant. She stated that the inquiry was pending review because of discipline recommended against Complainant. APD further stated that on April 23, 2015, management received a formal allegation from Internal Affairs that Complainant had been subjected to harassment and retaliation by S1, and APD assigned a Deputy Chief Officer to conduct an inquiry on Complainant’s allegations. She stated that Complainant was asked to participate in an inquiry regarding her allegations which was distinct from the first inquiry of allegations against her. Regarding claim 6, APD stated that she provided Complainant with options to assist her with parking fees and to apply for public transportation subsides. S1 stated that he was unaware that Complainant’s commute to Newark was causing her financial hardship, but upper management proved her with different options to assist her with cost. 0120171451 7 We find that Complainant has not presented any evidence from which it can be reasonably concluded that the Agency’s nondiscriminatory explanations are pretext for unlawful discrimination. In so finding, we note that it is undisputed that most of the incidents in this case were precipitated by an email in which Complainant strongly suggested that a coworker had stolen her coat. Additionally, Complainant implied a threat against the coworker by stating the coat might have a “hex” on it or give him Ebola. The email was copied to management, and the incident was reported as harassing. As such, the Agency had a duty to respond promptly and appropriately to the alleged harassment. We find that the Agency’s response was reasonable under these circumstances. Additionally, it is undisputed that the Agency provided Complainant with options to assist her with commuting costs during her reassignment. Regarding driving credentials, Complainant has not rebutted management’s assertion that she attended the prerequisite class for the driving class, and was subsequently scheduled to attend a driving class shortly thereafter. Thus, we conclude that the AJ properly found that Complainant did not prove she was subjected to unlawful discrimination or harassment. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFRM the Agency’s final order for the reasons set forth in this decision. 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. 0120171451 8 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. 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 November 30, 2018 Date Copy with citationCopy as parenthetical citation