Mahalia P.,1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Jun 24, 2020

2020000468 (E.E.O.C. Jun. 24, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mahalia P.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2020000468 Hearing Nos. 520-2016-00020X 520-2017-00334X Agency Nos. HS-CBP-00426-2014 HS-CBP-26021-2016 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s August 30, 2019, final orders concerning her equal employment opportunity (EEO) complaints 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Customs and Border Protection (CBP) Officer in New York and New Jersey. On April 3, 2014, Complainant filed an EEO complaint, as amended, alleging discrimination by the Agency on the bases of sex (female), national origin (Dominican Republic), age, and in reprisal for prior protected EEO activity when: 1. Since December 2013, she has been closely monitored by her immediate Supervisor; 2. On January 8, 2014, she received a verbal counseling for failing to follow a direct order, which was subsequently confirmed in writing; 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. 2020000468 2 3. On January 30, 2014, she was issued a Cease and Desist Letter for allegedly harassing a co-worker and her weapon, badge and credentials were confiscated; subsequently, on February 4, 2014, her weapon, badge, credentials were returned, and she was reassigned to the Cargo Processing Branch (CACEF) pending the outcome of the management inquiry into the alleged harassment; 4. Beginning on June 16, 2014, due to the issues described in the instant complaint, she felt compelled to take Leave Without Pay resulting in the Agency confiscating her weapon, badge, and credentials on June 18, 2014; and 5. On August 26, 2014, she was informed by the Deputy Chief Officer that she was ineligible to bid for the FY 2015 rotational cycle due to her light duty status. Complainant filed a second EEO complaint on June 3, 2016, alleging discrimination by the Agency on the basis of reprisal for prior protected EEO activity when: 1. On March 18, 2016, she learned that she was not selected for the position of CBP Officer (Container Security) advertised under Vacancy Announcement No. MHCCSFOB- 1599468-IC; and 2. On March 28, 2016, she learned that she was not selected for the position of CBP Officer (Container Security), advertised under Vacancy Announcement No. MCHCSFOB- 1605828-IC. After its investigation into the complaints, the Agency provided Complainant with copies of the reports of investigation and notices of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing for both complaints, and the Agency submitted motions for a decision without a hearing on both complaints. The AJ subsequently issued separate decisions on June 21 and June 24, 2019, respectively, by summary judgment in favor of the Agency on each complaint. The Agency issued final orders adopting the AJ’s findings 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 2020000468 3 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 fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decisions 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 by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final orders adopting the AJ’s decisions. 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. 2020000468 4 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 June 24, 2020 Date