07a40042
06-14-2004
Linda Harlow, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Linda Harlow v. Department of Homeland Security
07A40042
6/14/04
.
Linda Harlow,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 07A40042
Agency No. HS-04-0117
Hearing No. 380-A2-8013X
DECISION
Following its December 4, 2003 final order, the agency filed an appeal
with the Commission pursuant to 29 C.F.R. � 1614.405. On appeal and in
its final order, the agency agreed to implement an EEOC Administrative
Judge's (AJ) finding that the agency discriminated against complainant
on the basis of sex. However, the agency requests that the Commission
affirm its rejection of the AJ's order regarding back pay, compensatory
damages and attorney fees. For the following reasons, the Commission
DISMISSES the agency's appeal.
Complainant, a Supervisory Immigration Inspector, GS-12 employed at the
agency's Seattle/Tacoma Airport, Seattle, Washington facility, filed a
formal EEO complaint with the agency on July 13, 2004, alleging that the
agency had discriminated against her on the basis of sex (female) when,
on April 24, 2000, she learned she was not selected for the position of
Supervisory Immigration Inspector/Port Director, GS-13.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an AJ.
Following a hearing, the AJ found that complainant established a
prima facie case of sex discrimination when she was not selected for
the position. The AJ found that the agency articulated legitimate,
nondiscriminatory reason for its actions by stating that it selected
the most qualified person for the promotion. However, the AJ then
concluded that complainant established that more likely than not,
the reasons provided by the agency were a pretext for discrimination.
In reaching this conclusion, the AJ found that the selecting official
was not credible in his testimony and demeanor at the hearing.
On December 4, 2004, the agency issued a final order that implemented the
AJ's finding as to liability, but rejected the AJ's decision as to back
pay, compensatory damages and attorney fees. Specifically, the agency
argued that since complainant retired in September 2000, she was not
entitled to back pay after the date of retirement, where there was no
finding of a constructive discharge. The agency also argued there was
inadequate support for the compensatory damages and attorney fee awards.
EEOC Regulation 29 C.F.R. � 1614.110(a) states that [w]hen an
administrative judge has issued a decision ... the agency shall take
final action on the complaint by issuing a final order within 40 days
of receipt of the hearing file and administrative judge's decision.
The final order shall notify the complainant whether or not the agency
will fully implement the decision of the administrative judge and shall
contain notice of the complainant's right to appeal to ... [EEOC], the
right to file a civil action in federal district court, the name of the
proper defendant in any such lawsuit and the applicable time limits for
appeals and lawsuits. If the final order does not fully implement the
decision of the administrative judge, then the agency shall simultaneously
file an appeal [with EEOC] ... and append a copy of the appeal to the
final order. See also Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999) (hereinafter "EEO MD-110"),
at 9-1.
In response to the agency's appeal, complainant argues that the agency
failed to timely file its final order and appeal. In that regard, she
provides a letter from the agency's counsel to the agency's Complaint
Adjudication Office. See Complainant's Brief in Support of Her Appeal
of the Agency's Final Order and Complainant's Brief in Response to the
Agency's Appeal, at Exhibit B. In that letter, agency counsel discusses
the fact that the Complaint Adjudication Office had not yet received
the AJ's decision and hearing transcript because it had been sent to an
outdated post office box. Also in that letter, however, the agency's
counsel acknowledges that she received the package from the judge on
October 14, 2003. Furthermore, the record reveals that the agency's
Complaint Adjudication Office eventually received the AJ's decision and
hearing transcript on October 23, 2003. Applying the agency's counsel's
receipt, the agency should have filed their appeal on November 23, 2003.
Using the Complaint Adjudication Office's receipt, the appeal should
have been filed on December 2, 2003. However, the agency waited until
December 4, 2003 to issue its final order and file the instant appeal.
Here, the agency failed to comply with the dictates of our regulations.
As complainant contends in her appeal, the agency did not, within 40
days of its receipt of the AJ's decision, issue its order. As a result,
the AJ's decision became the agency's final order by operation of law.
See 29 C.F.R. � 1614.109(i); see also EEO MD-110, at 93.
Therefore, after a careful review of the record, the appeal is DISMISSED.
The agency is directed to provide the relief as described in the ORDER
below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
Within sixty (60) days from the date this decision becomes final, the
agency shall calculate and pay complainant back pay, including all
benefits and interest. The period of back pay shall be from May 7,
2000, the date she would have assumed the position of Port Director,
until the date of her retirement, September 3, 2000.<1> Complainant's
retirement benefits should be calculated as if she worked in the GS-13
Port Director position until her retirement. 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."
The agency shall pay complainant $50,000.00 in non-pecuniary compensatory
damages.
The agency shall pay complainant $64,052.65 in attorney's fees.
The agency shall post a notice in accordance with the paragraph below.
The agency shall consider taking disciplinary action against the
responsible management officials.
The agency shall provide the responsible management officials with
training on their responsibilities, rights and obligations under federal
equal opportunity laws and regulations.
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 backpay 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 Seattle/Tacoma, Washington 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
6/14/04
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
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 this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions,
or privileges of employment.
The Department of Homeland Security, Immigration and Customs Enforcement,
Seattle/Tacoma Airport, Seattle, Washington, (hereinafter referred to
as �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 has been found to have discriminated against a former
employee on the basis of sex when it did not select her for a promotion.
The facility was ordered to award back pay and all other benefits, as
well as compensatory damages and reasonable attorneys fees. The agency
was also ordered to provide training, consider taking disciplinary
action against the responsible officials, and post this notice.
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.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1The Commission modifies the AJ's order only with respect to the back pay
award in order to prevent an erroneous result. See Dorsey v. Department
of Treasury, EEOC Appeal No. 07A00017 (Commission modified AJ's relief in
an untimely appeal in order to prevent erroneous remedy). Here, the AJ
awarded back pay through the date of judgment in light of complainant's
testimony that she would have worked an additional three years for
retirement calculation purposes. However, the AJ also specifically found
that complainant did not allege that she was constructively discharged;
that her retirement was caused by the discrimination. The Commission has
previously held that a claim of constructive discharge is separate and
severable from a claim for relief regarding a finding of discrimination
with respect to the denial of a promotion. See Fitzgerald v. National
Security Agency, EEOC Appeal No. 01931739 (November 24, 1993). Even if
complainant's decision to resign had its genesis in the nonselection,
complainant did not file an EEO complaint alleging constructive discharge.
Accordingly, the Commission is precluded from addressing the issue in the
context of his instant complaint. See Farnham v. Department of Veterans
Affairs, EEOC Appeal No. 01943647 (June 29, 1995). Absent a finding of
constructive discharge, complainant is not entitled to reinstatement
and back pay after the date of retirement as part of her make-whole
relief. Id.
We are not persuaded by complainant's argument that she need not allege
a constructive discharge in order to receive back pay through the date
of judgement in this case in light of Thorne v. City of El Segundo,
726 F.2d 459 (9th Cir. 1983), cert. denied, 469 U.S. 979, 105 S.Ct. 38,
83 L.Ed. 2d. 315 (1984). Unlike the Thorne case, which dealt with a
failure to hire, the instant case specifically deals with a failure
to promote to a higher grade. See Scott v. Department of Navy, 1987
WL 770116 (EEOC) (December 4, 1987)(noting the limitation of back pay
awards in failure to promote claims and not failure to hire claims).
Accordingly, back pay is limited to the time of complainant's retirement.