MOORE v. BEERS

Filing 38

OPINION FILED. Signed by Judge Noel L. Hillman on 2/8/17. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
SHERRY MOORE,
Plaintiff,

Civil No.
13-6614(NLH/JS)

v.
OPINION
RAND BEERS, ACTING SECRETARY,
U.S. DEPT OF HOMELAND SECURITY,
Defendant.
__________________________________
APPEARANCES:
WILLIAM B. HILDEBRAND, LLC
36 TANNER STREET, SUITE 300
HADDONFIELD, NJ 08033
On behalf of plaintiff
ANNE B. TAYLOR
ASSISTANT U.S. ATTORNEY
CAMDEN FEDERAL BUILDING
& U.S. COURTHOUSE
401 MARKET STREET, 4th FLOOR
CAMDEN, NJ 08101-2098
On behalf of defendant

HILLMAN, District Judge
This case concerns plaintiff’s allegations of discrimination
and retaliation in her employment as an Immigration Enforcement
Agent for the United States Department of Homeland Security,
Immigration and Customs Enforcement.

Pending before the Court is

defendant’s motion for summary judgment.

For the reasons

expressed below, defendant’s motion will be granted.

BACKGROUND
Plaintiff, Sherry Moore, is an African-American female who,
since 1997, has been employed as an Immigration Enforcement
Agent by the Department of Homeland Security (DHS), Immigration
and Customs Enforcement (ICE), at the Marlton, New Jersey SubOffice for Detention and Removal Operations.

Plaintiff has

asserted claims pursuant to Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e et seq., against
defendant, the Secretary of DHS, 1 for conduct that she alleges
constitutes unlawful race discrimination and retaliation.
Plaintiff’s amended complaint 2 identifies two incidents of
alleged discrimination that occurred between March and May 2006.
Plaintiff claims that sometime between March and May 2006, her
second-line supervisor, Christopher Croteau, who is Caucasian,
ordered plaintiff and another African-American female employee

1

At the time plaintiff filed her complaint, Rand Beers was the
Acting Secretary of Homeland Security. When defendant filed its
motion for summary judgment, Jeh Johnson was the Secretary of
Homeland Security. With the recent change in administration, a
new Secretary of Homeland Security, John F. Kelly, has been
appointed.
2

Previously, defendant moved to dismiss plaintiff’s complaint.
The Court noted that although counsel had appeared on behalf of
plaintiff and had filed an opposition to defendant’s motion to
dismiss, plaintiff originally filed her complaint pro se. The
Court granted defendant’s motion, but afforded plaintiff 30 days
to file an amended complaint. (See Docket No. 15.) Plaintiff
did so, discovery was conducted, and defendant has now moved for
summary judgment in his favor.
2

to transport a female detainee to her home in Camden, New Jersey
in order for the detainee to breastfeed one of her four
children.

Plaintiff claims that it was standard practice that

ICE would inform the local police that ICE was going to be
operating in the area to protect the ICE agents’ safety.
Plaintiff contends that her supervisors did not follow this
procedure when plaintiff was ordered to transport the detainee
in an easily identifiable white van with government tags to an
area that was known for drug and gang activity.

Plaintiff

claims that Caucasian employees were never given similar, unsafe
assignments.
The second alleged discriminatory incident occurred in May
2006, when Croteau ordered plaintiff’s direct supervisor, Adam
Garcia, to assign her to three dangerous surveillance missions
in Camden.

Plaintiff contends that she was stationed in a white

government van, while agents from Fugitive Operations worked
undercover in plain clothes and unmarked vehicles.

Plaintiff

complained to her supervisors that the assignment was
unnecessarily dangerous, but it was only until another employee
complained about the dangerousness of the assignments that they
were cancelled.
Plaintiff claims that she was placed on these assignments
because she is African-American, and in retaliation of a race
discrimination charge she filed with the EEOC in 2004 against
3

Croteau and Garcia.

Plaintiff also claims that other several

incidents are evidence of discrimination.

These incidents,

which occurred in 2004 – 2005, include: (1) not being given the
chance to act as a supervisor while junior employees were
offered that opportunity; (2) being assigned to return to a
country in which she nearly died in a plane crash even though it
was not her turn to escort; (3) receiving unjustified write-ups;
(4) being denied overtime; (5) being forced to cover up for and
perform the job duties of other employees; (6) being ordered out
of buildings; (7) being yelled at in front of other employees;
(8) being denied training; and (9) being denied favored
assignments such as consulate runs.
Defendant has moved for summary judgment on all of
plaintiff’s claims.

Defendant argues the two incidents

involving plaintiff’s travel to Camden are time-barred because
she did not comply with the requirement that she contact an EEO
counselor within 45 days of the alleged discriminatory actions.
Defendant further argues that all of the other allegations of
discrimination are not independently actionable because
plaintiff never raised them in the administrative process, they
were dismissed in the administrative process, or plaintiff did
not exhaust the administrative remedies to cause them to be
actionable.

Defendant also argues that even if her claims are

deemed to be procedurally proper, plaintiff cannot support her
4

contention that she was discriminated due to her race or
retaliated because of her race.
Plaintiff has opposed defendant’s motion, arguing that her
claims regarding the two assignments to Camden were properly
exhausted at the administrative process, but at a minimum,
disputed facts preclude the finding that those claims are timebarred.

Plaintiff also argues that other incidents of

discrimination may be considered as “background” facts to
demonstrate defendant’s discriminatory motives.

Finally,

plaintiff argues that she has presented sufficient disputed
material facts for a jury to determine whether race was a
motivating factor in the Camden assignments, and also in
retaliation for filing an EEOC complaint in 2004.
DISCUSSION
A.

Jurisdiction

Plaintiff brings claims for discrimination and retaliation
in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e et seq.

This Court exercises

subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
B.

Summary Judgment Standard

Summary judgment is appropriate where the Court is
satisfied that the materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, or
5

interrogatory answers, demonstrate that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.

Celotex Corp. v.

Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a). An
issue is “genuine” if it is supported by evidence such that a
reasonable jury could return a verdict in the nonmoving party’s
favor.
(1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the
outcome of the suit.

Id.

In considering a motion for summary

judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be believed and
all justifiable inferences are to be drawn in his favor.”
Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
v. Catrett, 477 U.S. 317, 323 (1986).

Celotex Corp.

Once the moving party has

met this burden, the nonmoving party must identify, by
affidavits or otherwise, specific facts showing that there is a
genuine issue for trial.

Id.

Thus, to withstand a properly

supported motion for summary judgment, the nonmoving party must
6

identify specific facts and affirmative evidence that contradict

those offered by the moving party.
57.

Anderson, 477 U.S. at 256-

A party opposing summary judgment must do more than just

rest upon mere allegations, general denials, or vague
statements.

Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.

2001).
C.

Analysis
1.

Exhaustion issue

Prior to bringing suit in federal court, a federal employee
must exhaust the administrative remedies against her employer.
See 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.

For a federal

employee, “this process entails: (1) making contact with an EEO
counselor within forty-five (45) days of the alleged
discriminatory action; (2) filing a formal complaint with the
EEOC within fifteen (15) days from receipt of the agency’s final
decision; and then (3) appealing the agency’s final decision to
the EEOC or filing a civil action in the federal district court
within ninety (90) days of the agency’s decision.”

Marley v.

Donohue, 133 F. Supp. 3d 706, 716 n.16 (D.N.J. 2015); see also
29 C.F.R. § 1614.105(a)(1).

Dismissal is appropriate where an

employee has failed to exhaust her administrative remedies.
Marley, 133 F. Supp. 3d at 716 n.16.

The required initial EEO

contact and the subsequent filing of a formal complaint occur
within the agency’s administrative EEO program.
1614.102(c)(4), 1614.104-06.

7

29 C.F.R. §§

This mandatory administrative

process provides the affected parties with an opportunity to
explore the allegation of unlawful workplace activity and to
determine whether the situation can be remedied without judicial
intervention.

Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir.

1997).
Defendant takes great pains to parse out plaintiff’s claims
in order to decipher whether each one has met the exhaustion
requirements, and he has included a chart to illustrate his
findings.

(See Docket No. 30-2 at 16-17.)

Plaintiff does not

specifically oppose defendant’s arguments with regard to the
“background” incidents, as she only intends to use them as
support for her claims regarding the trips to Camden.

Plaintiff

opposes defendant’s position on the timeliness of her Camden
trips claims, arguing that defendant’s evidence on this issue is
equivocal at best.

She also argues that because she relied upon

prior counsel’s representations that the Camden trips claims
were being timely pursued in the administrative process, she is
entitled to equitable tolling of the two-month delay in
contacting the EEO counselor about the first incident.
The Court does not need to delve in the issue of whether
plaintiff’s claims regarding the Camden trips were properly
exhausted in the administrative process, or whether plaintiff
should be afforded the benefit of equitable tolling, because
even accepting that those claims were deemed fully exhausted and
8

properly brought before this Court, they fail on their merits as
a matter of law, as discussed next.
2.

Discrimination and retaliation claims

Plaintiff’s claims present two types of Title VII claims.
With regard to her discrimination claim, in order to state a
valid claim for disparate treatment on the basis of race,
plaintiff must show: (1) she belongs to a protected class; (2)
she suffered some form of adverse employment action; and (3) the
adverse employment action occurred under circumstances that give
rise to an inference of unlawful discrimination.

Barnett v. New

Jersey Transit Corp., 573 F. App’x 239, 243 (3d Cir. 2014)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973)) (other citations omitted).

An adverse or “tangible”

employment action is “‘a significant change in employment
status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision
causing a significant change in benefits.’”

Id. (quoting

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761,
(1998)).
As to plaintiff’s retaliation claim, to establish a prima
facie case of retaliation under Title VII, a plaintiff must show
that: “(1) she engaged in activity protected by Title VII; (2)
the employer took an adverse employment action against her; and
(3) there was a causal connection between her participation in
9

the protected activity and the adverse employment action.”
Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir.
2006) (citation omitted).
With respect to “protected activity,” the anti-retaliation
provision of Title VII protects those who participate in certain
Title VII proceedings (the “participation clause”) and those who
oppose discrimination made unlawful by Title VII (the
“opposition clause”).

Id. (citation omitted).

For the “adverse

employment action” element, a plaintiff must show that a
reasonable employee would have found the alleged retaliatory
actions “materially adverse” in that they “‘well might have
dissuaded a reasonable worker from making or supporting a charge
of discrimination.’”

Id. (quoting Burlington Northern & Santa

Fe Ry. Co., v. White, 548 U.S. 53, 67 (2006)) (explaining that
the “antiretaliation provision protects an individual not from
all retaliation, but from retaliation that produces an injury or
harm”).
To establish the third element, a plaintiff must show a
causal connection between the plaintiff’s opposition to, or
participation in proceedings against, unlawful discrimination,
and an action that might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.

Id.

Additionally, a plaintiff must show that the temporal proximity
of the protected activity and the employment action is “unduly
10

suggestive.”

Deans v. Kennedy House, Inc., 587 F. App’x 731,

735 (3d Cir. 2014) (citing Williams v. Phila. Hous. Auth. Police
Dep't, 380 F.3d 751, 760 (3d Cir. 2004)) (finding that the
plaintiff’s termination more than two months after he filed his
second EEOC charge not so close as to be unduly suggestive).
If a prima facie case is established, the burden of
production shifts to the employer to present a legitimate, nondiscriminatory reason for its actions.

Parker v. Secretary

United States Department of Veterans Affairs, --- F. App’x ---,
2017 WL 221786, at *2 (3d Cir. Jan. 19, 2017) (citing Daniels v.
Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015)).

If

such a reason is offered, the burden shifts back to the
plaintiff to demonstrate that the reason was merely pretext “and
that retaliation was the real reason for the adverse employment
action.”

Id. (quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d

Cir. 1994) (“[T]he non-moving plaintiff must demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons
for its action that a reasonable factfinder could rationally
find them ‘unworthy of credence.’”)).

Although the burden of

production shifts, “the plaintiff has the ultimate burden of
persuasion at all times.”

Id. (citing Daniels, 776 at 193).

Plaintiff’s discrimination and retaliation claims fail, for
several reasons.

First, plaintiff has not shown how the Camden
11

transportation and surveillance assignments constituted adverse
employment actions.

The job description for her position sets

forth the following requirements:
Position [of Immigration Enforcement Agent] is located
within the Department of Homeland Security (DHS),
Immigration and Customs Enforcement Bureau (ICE). This
position is responsible for performing a variety of
enforcement functions related to the investigation,
identification, apprehension, prosecution, detention and
deportation of aliens and criminal aliens, and apprehension
of absconders from removal proceedings. Incumbent
regularly enters hostile situations and may be required to
make decisions affecting the life, well[-]being, and/or
civil liberties of aliens, the public, and other law
enforcement officers, as well as impacting relations
between the U.S. and other governments.
All incumbents perform the first two major duties, and
perform one or more of the remaining five major duties on a
regular and recurring basis, for at least 25% of the time:
1.
DEPORTATION, TRANSPORT and ESCORT. [I]ncumbent
leads or is a member of a team, responsible for processing
and deporting or escorting aliens, under final orders of
removal, to their country of citizenship. . . . These
escorted aliens predominately fall under the aggravated
felon class of removable aliens or are physically or
mentally incapacitated, and are frequently hostile or
actively antagonistic to such deportation. . . . .
2.
DETENTION. The incumbent performs detention
program responsibilities identified in DHS standards,
including, but not limited to: ensuring detainee care
(physical, mental and civil rights), intake and outtake
processing, counseling regarding personal and family
members for detainees, and supervision and transportation
(including prison pick-ups and medical and court
transportation and security) of aliens detained in Agency
custody. . . . .
3.
JAIL CHECK and INSTITUTIONAL REMOVAL PROGRAM.
. . .
4.
PROSECUTION.
. . .
12

5.
DETERMINING ALIENAGE and FUGITIVE OPERATIONS.
. . .
6.
OPERATIONAL SUPPORT/ BORCAP/ LAW ENFORCEMENT
LIAISON.
. . .
7.
ALIEN CRIMINAL APPREHENSION PROGRAM(ACAP), LAW
ENFORCEMENT AGENCY SUPPORT, MULTI-AGENCY TASK FORCES, QUICK
RESPONSE TEAMS, DUTY OFFICER, etc.
. . .
- The incumbent carries firearms in the performance of
their duties . . . .
- Working conditions may include potential for loss of
life or bodily injury. This work is both physically
and mentally demanding and stressful. The
Immigration Enforcement Agent may be exposed to life
threatening situations that include physically
combative persons who may be carrying firearms or
explosives. Working hours may be unstable and
irregular and may include prolonged or nontraditional shifts. . . .
(Docket No. 30-13.)
Plaintiff claims that the assignments to travel to Camden
were “extremely dangerous,” where she was put in harm’s way and
she feared for her life.

The Court accepts plaintiff’s concerns

about these assignments, but she has not shown how these
assignments differed from the typical assignments required by
Immigration Enforcement Agents as whole, or in the Marlton suboffice specifically.

It is true that a supervisor’s requirement

that an employee perform the less desirable aspects of a job to
a greater degree than other employees may be considered an
adverse employment action.

See, e.g., Burlington Northern and

Santa Fe Ry. Co. v. White, 548 U.S. 53, 70–71 (2006) (“Almost
13

every job category involves some responsibilities and duties
that are less desirable than others. Common sense suggests that
one good way to discourage an employee . . . from bringing
discrimination charges would be to insist that she spend more
time performing the more arduous duties and less time performing
those that are easier or more agreeable.”).

Plaintiff, however,

has only provided unsubstantiated statements that other agents,
who were not African-American or who had not filed EEOC charges,
were not given similar assignments.
Plaintiff states that, as of October 4, 2008, she had “been
in this district for 11 years and know[s] who has been assigned,
because that information is contained on the G-391 forms which
list the details given to the agents.”

(Docket No. 33-5 at 3.)

If the disparate assignments were documented in the G-391 forms
as plaintiff says, plaintiff has not provided those forms to
support her contention that (1) the Camden assignments were
unusual; (2) the Camden assignments were extraordinarily
dangerous; and (3) agents who were not African-American or had
not filed EEOC charges did not receive such similar assignments.
Plaintiff’s unsupported allegations that she was ordered to
perform dangerous assignments because of her race and EEOC
complaint are insufficient to carry her burden of establishing
the adverse employment action element of her prima facie cases
for discrimination and retaliation.
14

Cf., Rosetsky v. National

Bd. of Medical Examiners of U.S., Inc., 350 F. App’x 698, 700–01
(3d Cir. 2009) (finding meritless the plaintiff’s assertion that
she was subject to an adverse employment action when her
supervisor assigned her additional clerical duties allegedly not
referenced in her job description, while promoting other,
younger employees to more substantive projects, because it was
uncontested that the plaintiff’s job description included
“assist[ing] with other duties as assigned,” as well as other
tasks specifically designed to accommodate “support” needs of
her manager, and that the plaintiff admitted that both younger
and older employees were often responsible for performing
clerical duties); Reynolds v. Department of Army, 439 F. App’x
150, 153 (3d Cir. 2011) (finding that a Performance Improvement
Plan (PIP) that is within the plaintiff’s job description and is
comprised of directives relating to an employee's preexisting
responsibilities, does not constitute an adverse employment
action); Citta v. Borough of Seaside Park, 2010 WL 3862561, at
*23 (D.N.J. 2010) (finding that plaintiff being required to
perform janitorial/clean up duties in the basement of Borough
Hall not an adverse action when basement clean-up was “something
that needed to be done” and other officers in addition to
plaintiff were assigned to this task); Haynes v. Smith, 2006 WL
543645, at *9 (D.N.J. 2006) (quotations and citation omitted)
(where the transfer does not affect the job description or terms
15

of employment and has no objectively harmful or negative
effects, it cannot be said that the transfer was adverse or
disparate); see also Burlington Northern, 548 U.S. at 71 (“To be
sure, reassignment of job duties is not automatically
actionable.

Whether a particular reassignment is materially

adverse depends upon the circumstances of the particular case,
and should be judged from the perspective of a reasonable person
in the plaintiff's position, considering all the circumstances.”
(internal quotations and citation omitted)).
Second, even if the Court were to find that plaintiff
established her prima facie cases for discrimination and
retaliation, she has not provided evidence, beyond her
unsupported allegations, to rebut defendant’s legitimate reasons
for requiring plaintiff to perform the Camden assignments.

With

regard to the transportation of the breastfeeding detainee back
to her home to feed her infant, plaintiff’s supervisor testified
that the situation had arisen one other time, and the same
procedure was implemented – i.e., a breastfeeding mother
detainee was transported to her home by female agents.
Plaintiff’s supervisor also testified that he chose plaintiff
and her colleague in this particular situation because they were
professional, experienced female agents.
Plaintiff does not directly rebut defendant’s explanation
for her assignment, other than to argue that the assignment was
16

unprecedented, her supervisor knew the mother was supplementing
with formula so the baby would not starve, and that her
supervisor sent her, and her African-American colleague, into a
dangerous part of Camden because they are African-American and
because plaintiff filed an EEOC complaint against him.

These

unsupported allegations are not sufficient to challenge the
veracity of defendant’s legitimate business reason for assigning
plaintiff to this particular detail. 3
With regard to the three surveillance assignments,
defendant states, and plaintiff admits, that plaintiff was
directed to perform surveillance to track an individual who
previously had an ankle bracelet put on by plaintiff, and there
were concerns that the individual might violate the conditions
of his release on an ankle bracelet.

Defendant states, and

plaintiff admits, that four other agents accompanied her on
these assignments.

Other than feeling that the surveillance

missions were dangerous, plaintiff has not shown how plaintiff’s
assignments were beyond typical job duties, intended to
discriminate and retaliate against her.
In sum, when considering the job description for
plaintiff’s position as an Immigration Enforcement Agent, the

3

Moreover, in addition to also being unsupported allegations,
none of plaintiff’s “background facts” cast doubt on defendant’s
reasons for selecting plaintiff for this assignment.
17

assignments she was directed to perform, and her supervisor’s
reasoning for selecting her for those assignments, plaintiff has
not met her burden of production or persuasion to establish that
her race or complaint with the EEOC were the motivating factors
in her assignment to those transportation and surveillance
details.
CONCLUSION
For the reasons expressed above, defendant’s motion to for
summary judgment on all claims in plaintiff’s complaint must be
granted.

An appropriate Order will be entered.

Date: February 8, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

18