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Wilson v. Nielsen

United States District Court, N.D. Indiana

October 29, 2018

KIRSTJEN NIELSEN, Secretary, Department of Homeland Security, Defendant.



         The matter before the Court is Defendant's motion for partial summary judgment. (ECF No. 40).


         On October 11, 2016, Plaintiff Roberta L. Vinson initiated this action by filing a complaint. (ECF No. 1). On March 4, 2018, Plaintiff filed a second amended complaint, bringing Title VII claims against Defendant Kirstjen Nielsen, Secretary of the Department of Homeland Security, for discrimination based on sex, sexual harassment, hostile work environment, retaliation, and constructive discharge. (ECF No. 36).

         On May 3, 2018, Defendant filed a motion for partial summary judgment. (ECF No. 40). On May 20, 2018, Plaintiff filed a response in opposition. (ECF No. 41). On June 4, 2018, Defendant filed a reply. (ECF No. 42). On June 8, 2018, Plaintiff filed a surreply. (ECF No. 43).[1]


         Plaintiff began working for the Department of Homeland Security, Immigrations and Customs Enforcement (DHS ICE), at the Office of the Chief Counsel (OCC) in San Diego, in March 2010. (ECF No. 41-16 at 11). On April 20, 2011, Plaintiff contacted an Equal Employment Opportunity (EEO) counselor regarding discrimination based on sex and retaliation. (ECF 36-1 at 14). In an attachment to her administrative filing, Plaintiff stated that she was sexually harassed by a coworker, that she reported the harassment, and that her coworkers retaliated against her for reporting. Id. at 18. Plaintiff provides a declaration stating that in June 2011, she was moved to the Enforcement Removal Office (ERO), a DHS ICE “division in the same building.” (ECF No. 41-20 at 2). On July 1, 2011, Plaintiff made the formal administrative filing regarding the harassment and retaliation. (ECF No. 36-1 at 13).

         Plaintiff filed a second administrative filing, dated May 14, 2012, regarding discrimination based on sex and retaliation. (ECF 36-2 at 5-6). In an attachment to the filing, Plaintiff described difficulties with the OCC while she was at the ERO, related to obtaining family medical leave in August 2011, and related to processing her compensation in September 2011. Id. at 7.

         Plaintiff provides an email from OCC authorities, dated August 16, 2012, informing her of the upcoming retirement of the coworker she reported for sexual harassment. (ECF No. 41-19 at 43). The email informed Plaintiff that she would “return to [her] position in OCC” after the retirement. Id. Plaintiff provides a document titled “Retaliation, ” a chronology of events between August 2010 and April 2015, which appears to be attached to an April 13, 2015 email to an EEO investigator.[2] The document states that, after receiving the August 16, 2012 email, Plaintiff objected to returning to the OCC and provided doctor's letters in an effort to demonstrate medical reasons she could not return. (ECF No. 36-6 at 8-9; ECF No. 41-8 at 6-7). The document states that on October 31, 2012, OCC officials informed Plaintiff she could transfer to the San Francisco OCC office at her own expense by December 1, 2012; otherwise, she was required to return to the San Diego OCC office on November 19, 2012. Id. The document states that around November 6, 2012, Plaintiff sought and obtained a new job with a lower pay grade, which began on December 3, 2012. Id. Plaintiff provides an additional chronology document, also an apparent email attachment to an EEO investigator, stating that she “was forced to take 2 w[ee]ks Annual Leave” before her new job started, because her ERO detail terminated on November 16, 2012. (ECF No. 36-5 at 3).

         On March 23, 2015, Plaintiff initiated a third administrative claim, followed by a formal administrative filing on August 5, 2015, regarding discrimination based on sex and retaliation. (ECF No. 41 at 11; ECF No. 40-9 at 3). Attached to the filing are thirty-five typed “Items” documenting certain events and related emails. The described events include: that in “January 2013, [Plaintiff] stated that San Diego [OCC] delayed return of [her] Transit Debit card, causing [her] to incur transit fees ($125/month)”; that in “April 2013, [Plaintiff's] first-line supervisor refused to document [her] personnel file to show that [she] worked for ICE, ERO”; that on January 6, 2015, February 11, 2015, and February 18, 2015, Plaintiff's “first-line supervisor was unresponsive” to requests by “the Department of Justice (DOJ)” and Plaintiff “for a reference sheet and background check . . . for a job [Plaintiff] had been offered by DOJ”; and that Plaintiff “was constructively discharged from ICE in November 2012.” (ECF No. 40-9 at 144, 150, 160, 178-81).


         Defendant seeks summary judgment on Plaintiff's fifth claim, “Title VII Constructive Discharge, ” on the grounds that “Plaintiff failed to contact an EEO counselor within the 45-day limitation period required by 29 C.F.R. § 1614.105(a).”[3] (ECF No. 40 at 2; ECF No. 42 at 1). Defendant asserts that “Plaintiff has filed three EEO claims related to this case, two before she left DHS and one two years after leaving DHS.” (ECF No. 42 at 1). Defendant asserts that “Plaintiff never raised the issue” of constructive discharge in the earlier filings because “at no time . . . did Plaintiff claim-nor did the EEOC nor Defendant understand Plaintiff to be claiming-she was constructively discharged.” Id. at 1-2. Defendant asserts that Plaintiff's first filing “centered on sexual and retaliatory harassment, ” and that the second “was limited to issues related to Plaintiff's FMLA requests.” Id. at 3. Defendant contends that Plaintiff's “alleged constructive discharge is a discrete discriminatory act for which a separate EEO Complaint was necessary.” Id. at 4.

         Plaintiff contends that she exhausted her constructive discharge claim because “[t]he limitations period starts upon the last discriminatory act of the employer.” (ECF No. 43 at 1). Plaintiff asserts that she “filed within the 45 day time period” after discovering certain OCC paperwork delays and personnel file inadequacies. (ECF No. 43 at 2). Plaintiff asserts that her timely administrative filing, containing “all acts of harassment and or reprisal which were discriminatory, up to and including the final act that Plaintiff was made aware of, ” was “filing HS-ICE-23573-2015” dated August 5, 2015. (ECF No. 43 at 2; ECF No. 41 at 11).

         Plaintiff contends that “[t]he claim of constructive discharge is NOT a separate discrete act.” (ECF No. 43 at 4). Plaintiff asserts that her “[r]equests for transfer began in April/May 2011 - since the date Plaintiff returned from hospitalization after eight months of inaction on the part of OCC supervisors who made Plaintiff continue to work alongside the coworker who sexually assaulted, harassed, bribed, taunted, and tormented Plaintiff.” Id. Plaintiff asserts that her 2015 administrative filing “request[ed] amendment of the existing, open complaint(s) which were still unresolved, and entirely related, ” and that “Item 35, regarding constructive discharge included an email” stating, ...

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