01a31055
09-29-2005
Barbara Perry, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Immigration and Naturalization Service) Agency.
Barbara Perry v. Department of Justice
01A31055
September 29, 2005
.
Barbara Perry,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Immigration and Naturalization Service)
Agency.
Appeal No. 01A31055
Agency No. I-01-E100
Hearing No. 150A19130X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 12, 2002, dismissing her complaint of unlawful
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. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of sex (female) when she was assigned to work at the Turner
Gilford Knight Correctional Center (TGK).
BACKGROUND
Complainant works as a Deportation Officer (DO) at the GS-12 level in the
Miami office of the Immigration and Naturalization Service (INS). It is
the practice of the Miami office to rotate DOs to temporary assignments
at the Krome Service and Processing Center (Krome). In 2000, there were
well-publicized allegations of sexual abuse by male INS employees against
detainees at Krome. Two male employees were eventually convicted of
sexual abuse. Following these events, INS transferred female detainees
from Krome to TGK and began to staff TGK with female DOs only. The idea
behind these changes was to prevent further sexual abuse incidents.
On December 13, 2000, Complainant was asked to volunteer for a temporary
assignment at TGK. She declined. Complainant was later involuntarily
assigned to TGK on three occasions: from January 2-12, 2001, May 8-11,
2001, and October 29, 2001 until sometime in December, 2001. Male DOs
were not assigned to TGK.
Complainant contends that conditions at TGK differ greatly from those
at Krome. First, she says that her assignments at TGK lasted longer
than at Krome. She also states that TGK assignments required her
to do work below her grade (at the GS-5 and GS-7 levels), and that
these lower-level assignments would have a negative effect on future
employment opportunities. Complainant claims that conditions at the
TGK office are cramped, unhealthy, and unsafe. She also asserts that
at times she was required to work alone at TGK and that this increased
the chance of being falsely accused of inappropriate behavior. Further,
complainant contends that concerns for TGK detainees' safety and privacy
can be addressed without resorting to a female-only staff.
The agency acknowledges that complainant was involuntarily assigned to
TGK because of her sex, but maintains that being female is a bona fide
occupational qualification (BFOQ) for working at TGK. The agency cites
privacy concerns for the female detainees and the sexual abuse problem
at Krome. It also cites the prohibitive logistics of adhering to safety
and privacy regulations if male DOs were assigned to TGK.
The Administrative Judge (AJ) issued a decision without a hearing.
According to the AJ, in order to establish a prima facie case of
discrimination under Title VII, the complainant must establish that
she was subjected to an adverse employment action which rendered
her aggrieved. He concluded that although the conditions at TGK may
have inconvenienced complainant, they did not cause her any materially
significant disadvantages. Therefore, the AJ stated, these assignments
did not rise to the level of an adverse employment action. He further
held that even though complainant was assigned to TGK and male DOs were
not, it would �defy logic� to conclude that this in itself rendered her
aggrieved, in light of the fact that the assignments themselves were
not adverse. In sum, the AJ reasoned that because complainant did not
suffer an adverse employment action she was therefore not aggrieved,
and because she was not aggrieved, she did not establish a prima facie
case of discrimination.
ANALYSIS AND FINDINGS
The Commission finds that the agency had a facially discriminatory policy,
that complainant was aggrieved, and that the AJ was in error to grant
a decision without a holding a hearing on the BFOQ question.
Complainant was aggrieved by the involuntary assignments to TGK.
The harm to complainant arises by the existence of the facially
discriminatory policy, and the fact that complainant was affected by
the facially discriminatory policy when she was ordered to work at TGK
solely because she was female. By treating complainant differently
in the duties to which she was assigned, based on her sex, complainant
has been rendered aggrieved, and she has shown that this policy caused a
harm to a term, condition, or privilege of her employment for which there
is a remedy. Additionally, the Commission has specifically held that an
involuntary work assignment constitutes an injury to a term, condition,
or privilege of employment. Lee v. United States Postal Serv., EEOC
Appeal No. 01A51786 (March 30, 2005); Alexander v. National Archives and
Records Administration, EEOC Appeal No. 01965585 (October 10, 1997).
Furthermore, the AJ erroneously conflated the questions of whether
complainant was aggrieved and whether she established a prima facie case.
Whether a complainant is aggrieved relates to whether complainant states
a claim. Whether the complainant has established a prima facie case,
however, turns on �whether the employer is treating some people less
favorably than others based on their race, color, religion, sex, or
national origin.� International Brotherhood of Teamsters v. United States,
431 U.S. 324 at 335 (1977). A prima facie case of discrimination arises
because an employer's acts, if otherwise unexplained, are more likely
than not based on the consideration of impermissible factors. Furnco
Construction Corp. v. Waters, et. al., 438 U.S. 567 at 577 (1978).
However, a complainant need not establish a prima facie case when she
has presented direct evidence of discrimination. Therefore, the AJ's
foray into the prima facie analysis was also in error.
The AJ also erred in deciding that there was no genuine issue of
material fact. The Commission's regulations allow an AJ to issue a
decision without a hearing when he or she finds that there is no genuine
issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of
the Federal Rules of Civil Procedure. U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the
substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment a court's function is not to weigh the evidence but rather
to determine whether there are genuine issues for trial. Id. at 249.
The evidence of the non-moving party must be believed at the summary
judgment stage and all justifiable inferences must be drawn in the
non-moving party's favor. Id. at 255. 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).
A fact is �material� if it has the potential to affect the outcome of
the case. In the context of an administrative proceeding, if a case can
only be resolved by weighing conflicting evidence, a decision without a
hearing is not appropriate. See Petty v. Department of Defense, EEOC
Appeal No. 01A24206 (July 11, 2003).
The question of whether sex is a BFOQ is a genuine issue of material
fact which warrants a hearing. See Radman v. Department of Justice, EEOC
Appeal No. 01A02824 (May 21, 2002). As stated above, the agency's policy
is facially discriminatory because it classifies on the basis of sex by
requiring sex to be used as the determinant factor in designating who
works at TGK. Section 703(e) of Title VII only permits classifications
based on sex ��where . . . sex . . . is a bona fide occupational
qualification reasonably necessary to the normal operation of that
particular business or enterprise.'� 42 U.S.C. 2000e-2(e)(1) (quoted
in Dothard, et al. v. Rawlinson, 433 U.S. 321, 333 (1977)). Where an
agency's policy is facially discriminatory, the burden is on the agency
to show that the BFOQ was reasonably necessary to the normal operation of
the business. The BFOQ exception �was meant to be an extremely narrow
exception to the general prohibition of discrimination on the basis of
sex.� Dothard, 433 U.S. at 334.
In the present case, the genuine issue of material fact is whether
being female is a BFOQ for working at TGK. The agency's practice of
sending only female DOs to TGK based exclusively on the DOs' sex, was
discriminatory on its face. As articulated above, in order to avoid
liability, the agency must show that sex was a BFOQ reasonably necessary
to the normal operation of the business.
Here, the agency and complainant present differing views on this question.
According to the agency, a female-only DO staff is required not only
because of past sexual misconduct by male employees, but also in order to
protect the detainees' privacy and safety. In support of its policy, the
agency points out that two male Krome employees were convicted of sexual
assault on detainees, that TGK has open shower and toilet facilities,
and that its female-only staff policy at TGK complies with the Florida
Model Jail Standards. Finally, the agency asserts that there are no
viable nondiscriminatory options for maintaining a safe and private
facility for detainees. Complainant, on the other hand, asserts that a
female-only DO staff will not necessarily alleviate privacy and safety
concerns, noting that females are just as capable of sexual misconduct as
males, and that male maintenance employees already regularly enter the
facility, thus undermining the female-only policy. She also contends
that alternative, nondiscriminatory options exist for ensuring safety
and privacy at the TGK facility and that the essence of DOs' work would
not be undermined by assigning male and female staff to TGK.
The Commission directs the parties to its recent decision in Booker
v. Department of Homeland Security, EEOC No. 07A30076 (July 13, 2005).
Booker involved a female INS employee who, because she was female, was
involuntarily assigned to escort a female detainee to her residence.
The AJ concluded the practice of requiring female escorts female
detainees was facially discriminatory and that the agency did not have an
adequate BFOQ defense. The Commission upheld these findings on appeal.
The Commission based its analysis on whether being female was a BFOQ
reasonably necessary to the normal operation of that particular business
or enterprise, and examined whether the use of male officers to transport
the female detainees would undermine the essence of the operation.
Likewise, in the present case, it is necessary to determine whether
being female is a BFOQ reasonably necessary to the normal operation of
TGK and whether male DOs would undermine the essence of the operation.
The Commission's decision in Pratt v. Department of Justice is also
instructive. EEOC Appeal No. 01972502 (August 18, 2000). In Pratt,
the agency did not allow female INS Detention Enforcement Officers
to accompany one another on escort details involving male detainees.
The agency based its policy on safety, security, and privacy concerns,
as well as detainees' cultural sensitivities. On appeal, the Commission
analyzed the safety and security question by looking at whether there was
a factual basis for the agency's conclusion that female employees were
less capable of providing for their safety. The Commission's analysis
of the privacy question turned on whether privacy was essential to the
normal operation of business or whether it was a secondary matter, and
also whether the privacy concerns could be addressed without undermining
employees' equal employment opportunities. Similarly, the facts of the
present case must be examined in order to determine whether detainee
safety and privacy are essential concerns of the agency and whether
these concerns can be addressed in a nondiscriminatory manner.
Having raised arguments contradicting the agency's explanation for using
sex as a BFOQ, the proper venue for addressing the BFOQ question is at
a hearing. In light of the above analysis, the proper questions to be
addressed in a hearing are: whether a female-only DO staff is reasonably
necessary to the normal operation of TGK, whether protecting detainees'
privacy and safety concerns is an fundamental or secondary function of
TGK, and whether options exist that would protect both the detainees'
safety and privacy and employees' equal employment opportunity rights.
CONCLUSION
To the extent that the AJ erred on the questions of whether complainant
was aggrieved and whether she established a prima facie case of sex
discrimination, and to the extent that the AJ erred by stating that there
is no genuine issue of material fact, the Commission REMANDS the matter
for a hearing in accordance with the above analysis.
ORDER (E0900)
The agency shall submit to the Hearings Unit of the Miami District Office
the request for a hearing within fifteen (15) calendar days of the date
this decision becomes final. The agency is directed to submit a copy of
the complaint file to the EEOC Hearings Unit within fifteen (15) calendar
days of the date this decision becomes final. The agency shall provide
written notification to the Compliance Officer at the address set forth
below that the complaint file has been transmitted to the Hearings Unit.
Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 29, 2005
__________________
Date