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