07A30018
10-15-2003
Josephine Puente, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, (Immigration and Naturalization Service), Agency.
Josephine Puente v. Department of Homeland Security
07A30018
October 15, 2003
.
Josephine Puente,
Complainant,
v.
Tom Ridge,
Secretary,
Department of Homeland Security,
(Immigration and Naturalization Service),
Agency.
Appeal No. 07A30018
Agency No. I-00-0124
Hearing No. 360-A1-8318X
DECISION
Following its January 17, 2002 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant. The agency also requests that the Commission affirm
its rejection of the AJ's order to award complainant compensatory damages
in the amount of $10,000.00. For the following reasons, the Commission
REVERSES the agency's final order.
The record reveals that, during the relevant period, complainant was
employed as a GS-1896-9/3, Border Patrol Agent at the agency's Yselta
Border Patrol Station facility in El Paso, Texas. The record reflects
that complainant gave birth on January 22, 2000. Complainant returned
to full duty status on March 13, 2000. Complainant testified that
as soon as she returned to work she began using her breaks to express
breast milk for her baby. Border Patrol Agents at the facility were
allowed two twenty minute breaks and a thirty minute lunch period.
Complainant testified that after learning that she was using her breaks
to express breast milk, her supervisors began to closely monitor the
amount of time she spent on these breaks.
On April 2, 2000, complainant wrote a memorandum to agency management
seeking cooperation in allowing her to express breast milk while on duty.
The Agency's response was that it did not have a legal obligation to
allow complainant to perform this activity while in a duty status.
Nevertheless, agency management agreed to permit complainant to take
two thirty minute breaks to express breast milk, but required that she
either use leave, take leave without pay, or extend her work day to make
up the time. The agency also agreed to provide a locked storage area
for her breast pump. On April 17, 2000, agency management presented
complainant with a memorandum explaining this agreement. Complainant
indicated that she required two thirty- minute periods during her tour
of duty in which to express breast milk. The agency agree to allow
complainant this time, but only if she was in a non-duty status.
Complainant filed a formal EEO complaint with the agency on August 11,
2000, alleging that the agency had discriminated against her on the bases
of sex (female) and reprisal for prior EEO activity arising under Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq., when she was denied duty time to express breast milk.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an AJ.
The AJ issued a decision without a hearing. The AJ concluded that
the agency discriminated against complainant on the basis of sex.<1>
In particular, the AJ noted that the agency permitted its employees to
use rest breaks and lunch periods to satisfy their bodily functions
or perform personal hygiene, as well as make personal purchases and
perform errands. Employees generally were not subjected to supervision
or management scrutiny while engaged in these activities.
The AJ found that complainant was closely scrutinized and monitored by
her supervisors during her breaks solely because she engaged in female
lactation. In contrast, the agency's male employees performed their
bodily functions or satisfied personal hygiene requirement without the
same scrutiny. The AJ also noted that while the breaks were technically
considered �duty time� for timekeeping purposes, in practice, these
periods were treated as �personal time,� which employees were free to
use for whatever purposes they wished. The AJ did not find the agency's
argument persuasive that female lactation is essentially a �child care�
issue, and allowing complainant to express her breast milk during her
breaks (duty time) would necessitate allowing other employees duty time
to engage in their own child care activities.
The AJ also concluded that complainant failed to establish a prima
facie case of reprisal discrimination. Specifically, the AJ determined
that more than a year had elapsed between complainant's prior protected
activity and the agency's denial of duty time to express breast milk.
The AJ also found that there was insufficient evidence to permit an
inference of retaliatory motive or intent on the part of the agency.
The agency's final order rejected the AJ's decision. On appeal, the
agency argues that there is no evidence that any management official
harbored animus toward complainant because of her sex or her status as
a nursing mother. The agency also contends that there is no evidence in
the record that any agent was given special permission to take breaks or
longer breaks than the allotted twenty minutes for any specific purpose.
The Commission concludes that the AJ's grant of a decision without a
hearing was appropriate in the instant case. The Commission's regulations
allow an Administrative Judge 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. The 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); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, the issuance of a
decision without a hearing is not appropriate. Review of an AJ's legal
determinations and the decision to issue a decision without a hearing
pursuant to 29 C.F.R. � 1614.109(g) is based on a de novo standard
of review. EEOC Management Directive 110 (MD-110) Chapt. 9-16 (1999).
The record shows that complainant established a prima facie case of sex
discrimination. The record also establishes that the agency articulated
a legitimate, nondiscriminatory reason for not providing complainant
duty time to express her breast milk. The agency asserted it refused
to allow complainant to express breast milk at work during her lunch
or rest periods because these periods constituted �duty time.� The
agency considered female lactation to be a non-work-related �family� or
�child-rearing� matter, which an employee could only undertake while in
a non-duty status. Complainant's status however, as a nursing mother,
is protected under the Pregnancy Discrimination Act (Pub. L. 95-955)
(hereafter PDA). See O'Brien v. National Security Agency, Appeal
No. 01951902 (May 27, 1997). The PDA requires that an agency treat women
affected by pregnancy, childbirth or related medical conditions the same
for all employment related purposes, as other persons not so affected
but similar in their ability or inability to do work. 42 U.S.C. 2000e(k)
(1994).
In the instant case, the record establishes that similarly situated male
employees were permitted to use rest breaks and lunch periods to satisfy
their bodily functions or perform personal hygiene, as well as make
personal purchases and perform errands. In fact, one of complainant's
male co-workers who has a colostomy bag was permitted to take breaks
that extended past the allotted twenty minutes and he was not required to
take annual leave. The record also supports the AJ's finding that while
rest breaks and lunch periods were technically considered �duty time�
for time-keeping purposes, in practice, these periods were treated as
�personal time,� which employees were free to use for whatever purposes
they desired. Because complainant was treated less favorably than her
male colleagues, the Commission finds that its proffered reasons were
a pretext for discriminatory animus based on complainant's sex.
Under the shifting burdens of production that the Supreme Court set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981),
a decision without a hearing is appropriate when the undisputed facts
show that the employing agency's proffered reason was pretext for
discriminatory animus.
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes his or her claim of unlawful discrimination may receive
compensatory damages for non-pecuniary losses (e.g., pain and suffering,
mental anguish). 42 U.S.C. 1981 a(b)(3). In addressing the question of
compensatory damages, the AJ concluded that complainant was entitled to
an award of non-pecuniary damages to compensate her for the intangible
losses she suffered. The Commission finds that the AJ properly determined
that complainant established a nexus between the alleged harm and the
discrimination. Therefore, we will now review whether the AJ's award
of $10,000.00 was appropriate.
Complainant's principal claim concerned the debilitating effects of
stress which required that she see a physician who prescribed medication.
In addition, as a result of the stress, complainant had to cease breast
feeding her baby. The record also establishes that because complainant
wanted to use as little time as possible expressing her breast milk, she
accelerated the breast pump machine which caused extensive bruising on her
breasts. As a result, complainant developed cracked and swollen nipples,
which resulted in extensive pain and discomfort. The AJ determined that
based on the evidence presented, complainant was entitled to $10,000.00.
Based on the foregoing, the Commission finds that complainant is entitled
to non-pecuniary damages in the amount of $10,000. See e.g. Batieste
v. Department of the Air Force, EEOC Appeal No. 01974616 (May 26, 2000)
($12,000 in non-pecuniary damages awarded based on complainant's emotional
distress); Jone v. Department of Defemse, EEOC Appeal No. 01973551(April
14, 2000) ($9,000 in non-pecuniary damages awarded based on complainant's
statements of the interference with family relations, headaches,
and anxiety resulting from the agency's discrimination). We note
that this sum is meant to compensate complainant for the emotional
distress she suffered, which was caused by the agency's discriminatory
actions. Finally, this amount meets the goals of not being motivated
by passion or prejudice, not being �monstrously excessive� standing
alone, and being consistent with the amounts awarded in similar cases.
See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989).
Based on the foregoing, we discern no basis to disturb the AJ's finding
of discrimination. The findings of fact are supported by substantial
evidence, and the AJ correctly applied the appropriate regulations,
policies, and laws. Therefore, after a careful review of the record,
including arguments and evidence not specifically discussed in this
decision, the Commission REVERSES the agency's final order and remands
the matter to the agency to take corrective action in accordance with
this decision and the ORDER below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall restore all leave (whether annual leave or
sick leave) that complainant took during authorized or sanctioned rest
breaks or lunch periods after March 13, 2000, for the specific purpose
of expressing breast milk.
The agency shall immediately remove the prohibition against complainant
using authorized or sanctioned rest breaks or lunch periods to express
breast milk while in a duty status.
To the extent that it has not already done so, within sixty (60) calendar
days from the date this decision becomes final, the agency is ordered
to provide EEO training to all of the responsible management officials
at the Yselta Border Patrol Station in El Paso, Texas, regarding their
obligation not to engage in unlawful employment discrimination against
employees pursuant to Title VII.
The agency is to review the matters giving rise to this complaint and to
determine whether disciplinary action against the responsible management
officials is appropriate. The agency shall record the basis for its
decision to take or not to take such actions, and to report the same to
the Commission in the same manner as implementation of the Commission
decision is reported.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall award complainant compensatory damages in the amount
of ten thousand and no/100 dollars ($10,000.00).
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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Yselta Border Patrol Station
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 (S0900)
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. 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:
October 15, 2003
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date
1The PDA is an amendment to Title VII.
It provides, in pertinent part, that the terms �because of sex� or �on
the basis of sex,� used in Title VII, shall include the terms �because of
or on the basis of pregnancy, childbirth or related medical conditions�
used in the PDA. Title VII, therefore, prohibits discrimination in
employment against women affected by pregnancy or related conditions.