01a43901
05-20-2005
Jeanise Smith, Complainant, v. Admiral James Loy, Acting Secretary, Department of Homeland Security, Agency.
Jeanise Smith v. Department of Homeland Security
01A43901
May 20, 2005
.
Jeanise Smith,
Complainant,
v.
Admiral James Loy,
Acting Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A43901
Agency No. I-02-C034
DECISION
Complainant filed a timely appeal with this Commission from the agency's
April 21, 2004 decision concerning 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
During the relevant time complainant was employed as an Immigration
Information Officer (IIO), GS-1802-8, at the agency's Texas Service
Center, Mesquite, Texas. From September 2001, through January 2002,
complainant was detailed to the Missouri Service Center, St. Louis,
Missouri. Complainant filed a formal complaint March 19, 2002,
alleging that she was subjected to discrimination on the bases of race
(Black), sex (female), age (41), and reprisal for prior EEO activity
when she was subjected to sexual harassment and physically assaulted by
a coworker on December 26, 2001. Following the investigation of her
complaint, complainant requested a hearing on her complaint before an
EEOC Administrative Judge (AJ). Complainant's case was forwarded to the
Commission's Dallas District Office and assigned to an AJ. On February
12, 2003, complainant withdrew her request for a hearing.
On April 21, 2004, the agency issued a final decision on her complaint
finding that she was subjected to discrimination on the bases of race and
sex when she was subject to sexual harassment and physically assaulted by
a co-worker, Person A. The agency found complainant was not subjected
to discrimination on the bases of age or reprisal. The agency ordered
the following relief: (1) Citizenship and Immigration Services (CIS)
shall ensure that work assignments are such that Person A has no contact
with complainant during working hours; (2) complainant must forward
to CIS within 60 days any documentation and other supporting evidence
which detail the extent and severity of harm and injuries (compensatory
damages) caused by the discriminatory actions in this case; (3) CIS
shall provide training to Person B, Person C, and Person D so that
they are fully cognizant of their obligations and duties as supervisors
and managers with respect to eliminating discrimination in the federal
workplace and under the equal employment opportunity laws with special
emphasis on the prevention and elimination of discrimination based on
sex and sexual harassment; (4) CIS shall consider taking appropriate
disciplinary action against Person A; and (5) CIS shall post a Notice
of a finding of discrimination in the Office of the District Counsel,
in New York, New York.
On May 24, 2004, complainant filed an appeal with the Commission seeking a
transfer and compensatory damages as relief in her complaint. Complainant
submits numerous attachments in support of her appeal. On appeal,
complainant does not challenge the agency's finding of no discrimination
based on age or reprisal. Therefore, we shall not consider whether the
agency properly found no discrimination on the bases of age and reprisal.
On June 14, 2004, the agency issued a letter noting that its April
21, 2004 final decision incorrectly ordered CIS to post a notice in
the Office of the District Counsel in New York. The agency noted that
relief item (5) was corrected to order CIS to post notice at is Missouri
Service Center currently known as the National Benefit Center, in Lee's
Summit Missouri. The agency ordered the notice posted in a conspicuous
location for a period of sixty days.
Thereafter, complainant filed a second appeal with the Commission
requesting that the notice be posted at the Texas Service Center (TSC)
instead of the Missouri Service Center (MSC). Complainant claimed that
the individuals involved in the incident have permanent locations at
the Texas Service Center and noted that none of the parties involved are
located at the Missouri Service Center. Further, complainant notes that
during the relevant time the Acting Supervisor, Person B (her supervisor
at MSC), was also on a detail to the MSC from the California District
Office.
With regard to her claim for compensatory damages, we note that the
agency's April 21, 2004 decision did provide that complainant could
receive compensatory damages if she established that she suffered
injuries as a direct result of the discrimination found to have occurred
in her complaint. The agency decision specified that complainant should
submit to CIS within sixty days any documentation and supporting evidence
detailing the extent and severity of the harm and injuries caused by the
discriminatory actions in her complaint. Thus, we find complainant's May
24, 2004 appeal concerning compensatory damages was prematurely filed.
The record reveals that the agency issued a February 10, 2005 decision
awarding complainant 237.75 hours of sick leave, $558.70 in pecuniary
damages and $25,000.00 in non-pecuniary damages. The agency decision
advised complainant she could appeal the compensatory damages and the
237.75 hours of sick leave awarded with the Commission within thirty
days of the date she received the decision. Complainant has not sent
the Commission any documentation stating that she disagrees with the
agency's February 10, 2005 decision. Thus, the Commission finds no
reason to disturb the compensatory damages or sick leave awarded in the
agency's February 10, 2005 decision.
We note complainant also requested that the agency post a Notice finding
discrimination in the agency's Texas Service Center (TSC) instead of the
agency's Missouri Service Center (MSC). Although the discriminatory
incidents in the present case occurred at the MSC, the record reveals
that during the relevant time, complainant and Person A were on detail
from the TSC to the MSC. The record reveals that Person B, complainant's
first-line supervisor while complainant was on the detail to Missouri, was
herself on detail to MSC (from Los Angeles). The record reveals during
the relevant time, the Deputy Director, Person C, and the MSC Director,
Person D, were also on detail from TSC to the MSC. Thus, we find that
since neither complainant, Person A, Person B, Person C, nor Person D
were permanent employees of MSC, at the time of the discrimination, we
find that the agency should post the Notice at its Texas Service Center.
Finally, we address complainant's request for a transfer from the Texas
Service Center. In the present case, we find that the ordered relief
that the Citizenship and Immigration Services shall ensure that work
assignments are such that Person A has no contact with complainant during
working hours is appropriate relief.
Accordingly, the finding of race and sex discrimination is AFFIRMED
and the agency's relief is MODIFIED. The agency shall comply with the
Order herein.
ORDER
The agency shall take the following action to the extent that it has
not yet done so:
The agency shall ensure that work assignments are such that Person A
has no contact with complainant during working hours.
Within 30 days of the date this decision becomes final, the agency
shall pay complainant $558.70 in pecuniary compensatory damages and
$25,000.00 in non-pecuniary compensatory damages.
Within 30 days of the date this decision becomes final, the agency
shall restore 237.75 hours of sick leave to complainant.
The agency shall, within 180 days of the date this decision becomes
final, provide training to Person B, Person C, and Person D so that
they are fully cognizant of their obligations and duties as supervisors
and managers with respect to eliminating discrimination in the federal
workplace and under the equal employment opportunity laws with a special
emphasis on the prevention and elimination of discrimination based on
sex and sexual harassment.
The agency shall consider taking disciplinary action against Person A.
The agency shall post at its Texas Service Center (Mesquite, Texas)
a copy of the attached NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION in accordance with the provision herein
entitled POSTING ORDER.
Documentation of compliance with this Order must be sent to the Compliance
Officer as referenced herein.
POSTING ORDER (G0900)
The agency is ordered to post at its Texas Service Center (Mesquite,
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.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
May 20, 2005
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated _____________________ ,which
found that a violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. has occurred at the Texas Service
Center, Mesquite, Texas (hereinafter �facility�).
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE or PHYSICAL OR MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have unlawfully discriminated against the
individual affected by the Commission's findings on the bases of sex
and race. The agency has been ordered to remedy the discrimination by:
ensuring that work assignments are such that complainant has no contact
with her harasser, provide complainant with compensatory damages,
consider taking appropriate disciplinary action against complainant's
harasser, and providing training to all officials involved in the case.
The facility will ensure that officials responsible for personnel
decisions and terms and conditions of employment will abide by the
requirements of all Federal equal employment opportunity laws.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
___________________________
Name and Title
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614