Zenobia K.,1 Complainant,v.John F. Kelly, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Jun 30, 2017

0120152554 (E.E.O.C. Jun. 30, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Zenobia K.,1
Complainant,

v.

John F. Kelly,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120152554

Hearing No. 520-2014-00208X

Agency No. HS-ICE-21834-2012

DECISION

Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s August
17, 2015 final order concerning an 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.

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
an Enforcement Removal Assistant, GS 8-10, at the Agency’s facility located on 26 Federal
Plaza, New York, New York.

On May 24, 2012, Complainant filed an EEO complaint alleging discrimination by the Agency
on the bases of race (Hispanic), sex (female), and in reprisal for prior EEO activity when:

1. On January 21, 2012, she became aware that she was not selected for the position of
Immigration Enforcement Agent, Enforcement and Removal Operations, New York City,
New York as advertised under vacancy announcement number LAG-ERO-534729-VTE-
007.

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.
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2. On February 2, 2012, she was cursed at by an Assistant Field Office Director (AFODI) in
the New York City Field Office and then AFOD2 yelled at her and sent her home.

3. On February 2, 2012, she was told by a Supervisory Detention and Deportation Officer
(SDDO) and AFOD2 that her office would be moved to the ninth floor.

4. On February 2, 2012, and continuing, her work was unfairly scrutinized by a SDDO in a
manner not done to other employees who have not complained of unlawful
discrimination.

5. On February 2, 2012, a SDDO harassed her by routinely asking her whereabouts and
called her while in the bathroom to question her whereabouts.

6. On February 20, 2012, a SDDO excluded her from a staff meeting regarding sleeping on
the job and how to dress and act to keep from getting in trouble.

After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission (EEOC or Commission) 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 Agency issued its 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).

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
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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 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 by the Agency as alleged.

Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 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).

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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 30, 2017
Date