United States District Court, N.D. Indiana
ROBERTA L. VINSON, Plaintiff,
KIRSTJEN NIELSEN, Secretary, Department of Homeland Security, Defendant.
WILLIAM Q. HAYES, JUDGE.
matter before the Court is Defendant's motion for partial
summary judgment. (ECF No. 40).
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).
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).
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).
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.
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. 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).
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,
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).” (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.
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).
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,