Deidra Golden, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionApr 22, 2005
05a50050 (E.E.O.C. Apr. 22, 2005)

05a50050

04-22-2005

Deidra Golden, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


Deidre Golden v. Department of Homeland Security

05A50050

April 22, 2005

.

Deidra Golden,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

Agency.

Request No. 05A50050

Appeal No. 07A40016

Agency No. TD-02-2227T

Hearing No. 330-A3-8014X

DECISION ON REQUEST FOR RECONSIDERATION

Deidra Golden (complainant) timely requested reconsideration of the

decision in Deidra Golden v. Department of Homeland Security, EEOC Appeal

No. 07A40016 (September 22, 2004). EEOC Regulations provide that the

Commission may, in its discretion, grant a request to reconsider any

previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

The record reflects that in her formal complaint, complainant alleged that

the agency discriminated against her, in violation of Title VII of the

Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et

seq., on the bases of race (African-American) and reprisal (association

with an individual who participated in protected EEO activity) when she

was not selected for the position of Drawback Specialist, GS-1894-7/9,

on or about March 15, 2002. An EEOC Administrative Judge (AJ) held

a hearing and found that complainant had been retaliated against due

to her suspected relationship with a former employee who had engaged

in prior EEO activity. By way of relief, the AJ ordered the agency to

provide complainant with back-pay and benefits from March 15, 2002, at

the GS-7 level, and pay complainant $15,000.00 in compensatory damages.

The AJ also ordered the agency to consider promoting complainant to the

GS-9 level. On appeal, the Commission concurred with the AJ's finding

of discrimination, and affirmed the AJ's award of compensatory damages.

Further, despite complainant's contention on appeal, we declined to award

complainant a promotion to the GS-9 level, noting that the Commission has

been reluctant to assume that an individual, absent a discriminatory act,

would have subsequently received a competitive promotion.

In her request for reconsideration, complainant contends that the

Commission erred in finding that the promotion to the GS-9 level is

a competitive promotion. Complainant argues that it is, in fact,

a non-competitive, career-ladder promotion to which she would have

automatically been entitled after the required time-in-grade. In its

statement in opposition to complainant's request, the agency states

that the position at issue is not a career-ladder position, and that

complainant is not eligible for a promotion to the GS-9 level. We find,

however, that the record reflects that the vacancy announcement for

the Drawback Specialist, GS-1894-7/9, position specifically states

that a "selectee entering this position below the GS-12 level will

have noncompetitive promotion potential to the full performance level."

As such, we find that the position at issue is a career-ladder position

with promotion potential to the GS-12 level, and that complainant is

entitled to a promotion to the GS-9 level.

After a review of the complainant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that

complainant's request meets the criteria of 29 C.F.R. � 1614.405 (b),

and it is our decision to modify the order in EEOC Appeal No. 07A40016.

The agency shall comply with the new order as set forth below.

ORDER

To the extent it has not already done so, the agency is ordered to take

the following remedial action:

No later than thirty (30) calendar days after the date this decision

becomes final, the agency shall retroactively promote complainant to

the career ladder position of Drawback Specialist, GS-9, retroactive

to March 15, 2003. The agency shall continue to provide career ladder

promotions to complainant under the appropriate personnel rules until

complainant is promoted to the GS-12 level.

The agency shall determine the appropriate amount of back pay, with

interest, and other benefits due complainant, pursuant to 29 C.F.R. �

1614.501, no later than sixty (60) calendar days after the date this

decision becomes final. The complainant shall cooperate in the agency's

efforts to compute the amount of back pay and benefits due, and shall

provide all relevant information requested by the agency. If there

is a dispute regarding the exact amount of back pay and/or benefits,

the agency shall issue a check to the complainant for the undisputed

amount within sixty (60) calendar days of the date the agency determines

the amount it believes to be due. The complainant may petition for

enforcement or clarification of the amount in dispute. The petition for

clarification or enforcement must be filed with the Compliance Officer,

at the address referenced in the statement entitled "Implementation of

the Commission's Decision."

Within thirty (30) days from the date this decision becomes final, the

agency shall pay complainant $15,000.00 in non-pecuniary compensatory

damages.

Within thirty (30) days from the date this decision becomes final, the

agency shall provide training to the Recommending Official/Assistant Port

Director and the Selecting Official/Director of Customs Management Center

in the laws prohibiting employment discrimination, paying particular

attention to the laws preventing retaliation for engaging in EEO activity.

Within thirty (30) days from the date this decision becomes final, the

agency shall consider taking disciplinary action against the Recommending

Official/Assistant Port Director and the Selecting Official/Director of

Customs Management Center. If the agency decides to take disciplinary

action, it shall identify the action taken. If the agency decides not

to take disciplinary action, it shall set forth the reason(s) for its

decision not to impose discipline. The agency shall report its decision

in its Compliance Report.

The agency shall post a notice in accordance with the paragraph below.

The agency shall pay reasonable attorney's fees in accordance with the

paragraph below.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay and other benefits due complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Houston, Texas facility copies of

the attached notice. Copies of the notice, after being signed by the

agency's duly authorized representative, shall be posted by the agency

within thirty (30) calendar days of the date this decision becomes final,

and shall remain posted for sixty (60) consecutive days, in conspicuous

places, including all places where notices to employees are customarily

posted. The agency shall take reasonable steps to ensure that said

notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

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.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. You have the

right to file a civil action in an appropriate United States District

Court within ninety (90) calendar days from the date that you receive this

decision. 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.

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

April 22, 2005

__________________

Date