Josephine Puente, Complainant,v.Tom Ridge, Secretary, Department of Homeland Security, (Immigration and Naturalization Service), Agency.

Equal Employment Opportunity CommissionOct 15, 2003
07A30018 (E.E.O.C. Oct. 15, 2003)

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.