Regina Pratt, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionMay 3, 2007
0520070398 (E.E.O.C. May. 3, 2007)

0520070398

05-03-2007

Regina Pratt, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


Regina Pratt,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

Agency.

Request No. 0520070398

Appeal No. 0720050059

Hearing No. 350-2002-08194x

Agency No. HS050258

DENIAL

The agency requested reconsideration of the decision in Regina Pratt

v. Department of Homeland Security, EEOC Appeal No. 0720050059 (February

23, 2007). EEOC Regulations provide that the Commission may, in its

discretion, grant a request to reconsider any previous Commission decision

where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

In our prior decision we found that the agency discriminated against

complainant on the basis of sex (female) when she was not selected as an

escort for a male alien detainee to Jamaica. The agency had enacted a

policy that provided that at least two escorts per detainee are required

and that "[a]t least one escort shall be the same sex as the detainee."

The Commission found the policy to be facially discriminatory on the

basis of sex. Furthermore, the Commission rejected the agency's argument

that its policy is permissible because sex is a bona fide occupational

qualification (BFOQ) reasonably necessary to the normal operation of

that particular business or enterprise.

After reconsidering the previous decision and the entire record, the

Commission finds that the request fails to meet the criteria of 29

C.F.R. � 1614.405(b), and it is the decision of the Commission to deny

the request.

The agency also requests clarification of footnote 7 in the prior decision

which stated:

The Commission recognizes that particular instances may arise where a

requirement for a same-sex assignment for a DEO (Detention Enforcement

Officer) could possibly be appropriate. As a general policy, however, the

agency has failed to justify that sex is a BFOQ in the instant matter.

Id. The agency lists of a myriad of situations and queries whether

such situations would be appropriate for a same-sex escort requirement.

The Commission finds that it is inappropriate to give definitive rulings

to matters that have not been the subject of a hearing, investigation, or

an EEO complaint whereby a complainant could fully litigate the matter.

Nevertheless, we recognize the agency's legitimate concerns regarding

when the mandate of same-sex escort details would be appropriate.

For illustrative purposes only (we make no definitive findings regarding

these scenarios), we shall restate and discuss two of the scenarios

raised by the agency on appeal for clarification:

1. The escort detail will transit through a third country where the

known "secured" holding facility is a general population cell with open

lavatory facilities, and the local rules mandate that the escorts remain

to watch the aliens in the cell, including their use of the lavatory,

otherwise the alien cannot be housed at the facility.

2. The alien has been a victim of a crime by a member of the opposite

sex such as rape.

Regarding scenario 1, one issue the agency should examine is whether

the only way to reasonably deport the alien detainee is through a third

country with the lavatory rule and situation described by the agency.

If yes, then the next question would be the likelihood of the alien

having to using the lavatory during the time in question. It is not

clear from the scenario if the period of time in the third country would

be minutes, hours, or possibly overnight. Finally, the next question for

the agency is whether the escorts' observation of the detainee's "use of

the lavatory" actually requires literally observing the detainee naked.

These are the issues the agency should examine in these situations.

If the agency reasonably concludes that such privacy interests of the

detainee will likely be compromised because there is no reasonable

alternative to protect the detainee's privacy interest, then this is

the type of instance where the requirement of a same-sex assignment of

a DEO could possibly be appropriate.

Regarding scenario 2, we find that the agency has not explained in this

scenario why the escort detail must be the same sex as the detainee.

In order to justify sex as a BFOQ, such an explanation would be required.

These two scenarios were chosen to show the type of analysis the agency

should undertake when it is deciding whether a requirement for a same-sex

assignment of a DEO could possibly be appropriate.

The decision in EEOC Appeal No. 0720050059 remains the Commission's

final decision. There is no further right of administrative appeal on

the decision of the Commission on this request. The agency shall comply

with the Order as set forth herein.

ORDER

The agency is ordered to take the following actions:

1. Within 30 calendar days of the date this decision becomes final, the

agency shall pay complainant $7,000.00 in non-pecuniary, compensatory

damages.

2. Within 30 calendar days of the date this decision becomes final,

the agency shall pay complainant's attorney $19,325.79 in attorney's

fees and costs.

3. The agency shall immediately review its policies and procedures

relating to escort details and revise the policy to protect the rights

of its employees to be free from unlawful discrimination based upon sex.

4. Within 180 days of the date this decision becomes final, the

agency shall train all responsible agency employees, concerning the

identification, prevention, and correction of discrimination on the

basis of sex under Title VII.

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 documentation indicating that the

corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Florence Service Processing Center in

Florence, Arizona 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.

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

May 3, 2007

__________________

Date

5

0520070398

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036