0120112723
01-26-2012
Vicky Fohey, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Vicky Fohey,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120112723
Hearing No. 440200900135x
Agency No. HS08ICE005959
DECISION
On April 18, 2011, Complainant filed an appeal from the Agency’s March
24, 2011, 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. The Commission deems the appeal timely and accepts it
pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Special Agent at the Agency’s Immigration and Customs Enforcement
facility in Springfield, Illinois.
On September 16, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of sex (female) and
reprisal for prior protected EEO activity when:
1. On September 20, 2007, the Deputy Regional Director (DRD), when
referring to Complainant said, “She knows where the door is”;
2. In October 2007, the DRD made a remark about Complainant’s hardship
transfer request which a third party thought was a threat;
3. On October 16, 2007, the DRD ordered personnel to wear Agency assigned
battle dress uniforms, referred to as “BDU’s”;
4. Between January 11, 2008 and January 26, 2008, Complainant was
repeatedly required to provide information pertaining to her 2004 hardship
transfer request;
5. On January 3, 2008, Complainant was not allowed to telecommute,
and later that day after the conclusion of her daily tour of duty and
while she was officially on annual leave, she alleges the was tasked
with completing an intelligence bulletin;
6. On January 16, 2008, she was tasked with uploading a document after
the conclusion of her daily tour of duty;
7. By Memorandum dated May 13, 2008, she was suspended from duty and
pay status for three days.
The record in this matter indicates that on November 8, 2008, the Agency
issued a decision dismissing a portion of the instant complaint. Therein,
the Agency accepted for investigation claims 1, 2 and 7 but dismissed
claims 3, 4, 5 and 6 as untimely, in accordance with EEOC Regulation
29 C.F.R. § 1614.107(a)(2). Specifically, the Agency determined
that Complainant contacted an EEO Counselor regarding claims 3, 4,
5 and 6 on May 19, 2008 regarding incidents which allegedly occurred
between October 2007 and January 2008 which is beyond the applicable
time limitation for seeking EEO contact.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. EEOC
regulations provide that the agency or the Commission shall extend the
time limits when the aggrieved individual shows that he or she was not
notified of the time limits and was not otherwise aware of them, that
he or she did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due
diligence he or she was prevented by circumstances beyond his or her
control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
Here, Complainant failed to demonstrate that she was unaware of the time
limitations for EEO contact, or that she was unable to timely contact
an EEO Counselor for reasons beyond her control. In that regard, the
Commission finds that the Agency’s dismissal of claims 3, 4, 5 and 6
was proper.
At the conclusion of the investigation of claims 1, 2 and 7, the Agency
provided Complainant with a copy of the report of investigation and
notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing.
As an initial matter, the AJ assigned to the case determined that the
Agency incorrectly dismissed claim 4. Specifically, the AJ found that
claim 4 regarding the requirement that Complainant provide information
concerning her hardship request was closely related to Complainant’s
claim that she was threatened with a transfer (claim 2) which the
Agency accepted. Therefore, the AJ decided to adjudicate the two claims
together.
Over the Complainant’s objections, the AJ assigned to the case granted
the Agency’s August 21, 2009 motion for a decision without a hearing,
and issued a decision without a hearing on February 28, 2011.
In finding in favor of the Agency on summary judgment, the AJ determined
that the evidence of record gathered during the investigation and in
pre-hearing depositions established the following undisputed facts.
On September 20, 2007, during a conference call, Complainant made
a statement that, “it is a shame that we have to work under a
dictatorship rather than being able to have a voice.” Later that day,
another employee told the DRD what Complainant had said, to which the DRD
responded, “If [Complainant] does not like the dictatorship, she knows
where the door is.” This comment was not made directly to Complainant,
but to the person who reported Complainant’s statement to the DRD.
Regarding the alleged threat to transfer Complainant, the AJ found that
the record established that in October 2007, an Agency official said
to a third party in reference to Complainant that, “we will send
[Complainant] to Detroit if [named individual] left.” The third
party responded saying that Complainant was in Springfield on a hardship
transfer. Complainant contends that the Agency official threatened her
transfer when he replied, “we will see about that.”
Complainant further alleges that she was repeatedly asked in January 2008
for the paperwork justifying her hardship transfer to Springfield. Agency
witnesses indicated that the requests were made because documentation
regarding the reasons for Complainant’s transfer was needed in order
to justify the hiring of another agent in Complainant’s former position.
Finally, the record further reveals that in May 2008, Complainant was
charged with negligent performance of duties and failure to follow
Agency policy. Specifically, Complainant was charged with failing to
investigate a case in a timely manner and failing to timely prepare an
intelligence bulletin for a presidential visit. As a result, Agency
management suspended Complainant for three days.
ANALYSIS AND FINDINGS
We must 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.
Upon review of the record we find that the AJ properly found that the
instant complaint was suitable for summary judgment. The record is
adequately developed and there are no disputes of material fact.
Here, we agree with the AJ’s finding of no discrimination. Generally,
claims of disparate treatment are examined under the tripartite analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
For 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 Corp. v. Green, 411 U.S. at 802; Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). For instance, to establish a prima facie case
of reprisal, Complainant generally must show that: (1) she engaged
in protected EEO activity; (2) the Agency was aware of the protected
activity; (3) subsequently, she was subjected to adverse treatment by
the Agency; and (4) a nexus exists between her protected activity and
the advese treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency’s
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 256 (1981).
Even assuming arguendo that Complainant satisfied the above elements
to establish a prima facie case of reprisal discrimination, we find
further that the Agency articulated legitimate, nondiscriminatory
reasons for its conduct as alleged and that Complainant failed to prove,
by a preponderance of the evidence, that those reasons are pretext for
unlawful discrimination on any alleged basis.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the
Agency’s final order fully implementing the AJ’s decision finding
no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File A Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 26, 2012
__________________
Date
2
0120112723
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112723