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Moore v. Beers

United States District Court, D. New Jersey

February 8, 2017

SHERRY MOORE, Plaintiff,
v.
RAND BEERS, ACTING SECRETARY, U.S. DEPT OF HOMELAND SECURITY, Defendant.

          WILLIAM B. HILDEBRAND, LLC On behalf of plaintiff.

          ANNE B. TAYLOR ASSISTANT U.S. ATTORNEY CAMDEN FEDERAL BUILDING & U.S. COURTHOUSE On behalf of defendant.

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         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 Sub-Office 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 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 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 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 time-barred. 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 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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 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 ...


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