07A20139
12-02-2003
Margarita Haywood v. Department of Homeland Security
07A20139
December 2, 2003
.
Margarita Haywood,
Complainant,
v.
Tom Ridge,
Secretary,
Department of Homeland Security,<1>
Agency.
Appeal No. 07A20139
Agency No. 974321
Hearing No. 340-98-3684X
DECISION
Following its August 20, 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 on the basis of her sex. For the following reasons,
the Commission REVERSES the agency's final order.
Complainant, a former Customs Inspector employed at the Port of Calexico,
California, filed a formal EEO complaint with the agency in September
1997, alleging that the agency had discriminated against her on the
bases of her national origin (Hispanic/married to an African-American)
and sex (female) when she was terminated from her position as a Customs
Inspector, during her probationary period, for misconduct.
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, and that complainant established that
more likely than not, the reasons provided by the agency were unworthy of
credence, and pretext for sex discrimination. The AJ awarded remedies
in the form of an offer of a permanent (or non-probationary) Customs
Inspector Position or substantially equivalent position; back-pay;
pecuniary and non-pecuniary compensatory damages; and attorney's fees.<2>
The agency's final order rejected the AJ's decision. On appeal, the
agency argues that the agency's findings regarding discrimination are
not supported by substantial evidence in the record, and asks that we
affirm its final order. Complainant contends that the record supports
the AJ's finding, and requests that we reverse the agency's final order.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, we discern no basis to disturb the
AJ's finding of discrimination.<3> The findings of fact are supported
by substantial evidence, and the AJ correctly applied the appropriate
regulations, policies, and laws. Accordingly, 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
To the extent that it has not already done so, within 60 days from the
date of this decision, the agency is ordered to:
Offer complainant a permanent (or non-probationary) Customs Inspector
Position or substantially equivalent position in the agency's Port of
Calexico, California office. Complainant shall be given a minimum of
15 days from the date of her receipt of the offer in which to accept or
decline the offer.
Pay complainant $1,800.00 in pecuniary compensatory damages.
Pay complainant $50,000.00 in non-pecuniary compensatory damages.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) 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 is entitled to
back pay calculated from the date of her termination until the date she
accepts or declines reinstatement, and reduced by the monies she earned
in her alternate employment during the processing of this complaint.
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."
Pay complainant a total attorney fee award of $23,751.50.
The agency shall provide EEO training, with special emphasis on the
agency's obligations under Title VII, to the agency official(s) found
to have discriminated against complainant.
The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the compliance officer. 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. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
POSTING ORDER (G0900)
The agency is ordered to post at its Port of Calexico, California
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 (KO501)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 2, 2003
__________________
Date
1 The complaint herein was originally filed against the Department of
the Treasury, Customs Service. The Customs Service is now a component
of the Department of Homeland Security.
2 The AJ awarded no costs to complainant because she found that
complainant's fee petition presented inadequate evidence of any costs
incurred.
3 We will not disturb the AJ's awards of remedies because neither party
specifically disputes them on appeal.