Margarita Haywood, Complainant,v.Tom Ridge, Secretary, Department of Homeland Security,<1> Agency.

Equal Employment Opportunity CommissionDec 2, 2003
07A20139 (E.E.O.C. Dec. 2, 2003)

07A20139

12-02-2003

Margarita Haywood, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, Agency.


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.