01973197
07-19-2000
Reina E. Killfoil, Complainant, v. Janet Reno, Attorney General, Department of Justice, (Immigration and Naturalization Service), Agency.
Reina E. Killfoil v. Department of Justice
01973197
July 19, 2000
Reina E. Killfoil, )
Complainant, )
)
v. ) Appeal No. 01973197
) Agency No. I-91-5895
Janet Reno, ) Hearing No. 340-95-3699X
Attorney General, )
Department of Justice, )
(Immigration and Naturalization )
Service), )
Agency. )
___________________________________)
DECISION
On March 6, 1997, Reina E. Killfoil, (hereinafter referred to as the
complainant) filed a timely appeal with the Equal Employment Opportunity
Commission (Commission) from the final decision of the Department of
Justice, Immigration and Naturalization Service (hereinafter referred
to as the agency) concerning her allegation that the agency violated
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq.<1> In her complaint, complainant alleged that the agency
discriminated against her on the basis of her sex (female) and national
origin (El Salvadoran) when the agency subjected her to a hostile
environment: (1) in its Los Angeles District Office (District Office), and
(2) at the Immigration Officers Basic Training Course in Glynco, Georgia
(Training Facility), where complainant was being trained as an agency
Immigration Examiner. This appeal is accepted in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
During the period in question, complainant was employed by the agency
in the position of Immigration Examiner Trainee as a GS-9. To retain
the Immigration Examiner position, complainant was required to attend
and complete training at the Training Facility.
Complainant filed a formal complaint of discrimination on January 31,
1991, in which she alleged: (1) On January 19, 1990, she was dismissed
from her position of Immigration Examiner based upon her ethnic origin;
(2) she was subjected to comments by classmates about her ethnicity;
(3) the agency applied different standards to her, and (4) she was
improperly terminated by the District Office even though she was not a
probationary employee.<2> Following the investigation of the complaint,
complainant requested an EEOC administrative hearing, which was held
before an administrative judge (AJ) in October 1996.
On November 27, 1996, following a hearing at which eighteen witnesses
testified, the AJ recommended a finding of discrimination at the Training
Facility with respect to allegations #1, #2, and #3, and a finding of
no discrimination at the District Office with respect to allegation #4.
Regarding the finding of discrimination, the AJ found credible testimony
that complainant was subjected to hostile environment harassment based
on her sex (female) and national origin (El Salvadoran).
With regard to the discriminatory acts the AJ found that both the
Training Facility and complainant's classmates contributed to the
hostile environment. The AJ found that complainant was ridiculed and
demeaned based on her distinct El Salvadoran accent. Complainant was
also belittled for deferring to a man for class President. The AJ
further determined that complainant was written up for violating the
dress code, however no one else was written up for the same violation.
Nevertheless, the Training Facility only blamed complainant for the need
to re-take the class picture.
The AJ further determined that complainant was subjected to the
discrimination when she was accused of cheating on a Spanish exam,
and when her instructors and classmates continued to request that she
be dismissed from the Training Facility, after it had been determined
she had not cheated on the exam.
In addition, the AJ found that complainant had passed the final
Immigration Law exam, with a score of 66, as opposed to the reported
score of 62. As a result she passed the Immigration Law course; and would
have graduated from the Training Facility but for the discrimination.
The AJ invoked the adverse inference rule and found that the agency
acted in bad faith when the agency destroyed complainant's class records,
including her final Immigration Law exam, answers, score and revisions,
in violation of its own standards: (1) after the agency was on notice
of the instant complaint, and (2) after the records had been seen by
agency officials, but before they had been seen by the EEO investigator.
With regard to the remedy, the AJ determined that complainant should be
awarded: (1) the certificate of completion from the Training Facility,
and (2) back pay and benefits. On February 7, 1997, the agency issued its
final decision (FAD) adopting the AJ's finding of no discrimination, and
rejecting the AJ's finding of discrimination. It is from this decision
that complainant now appeals<3>.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
administrative judge 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 Cameral 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).
After a careful review of the record in its entirety, including statements
submitted on appeal, the EEOC hearing transcripts, the AJ's recommended
decision, the FAD, and arguments and evidence not specifically addressed
in this decision, the Commission finds that the AJ's recommended decision
is supported by substantial evidence. Nothing proffered from the agency
in its final decision differs significantly from the arguments presented
at the hearing and given full consideration by the AJ. Therefore, the
Commission discerns no basis upon which to overturn the AJ's finding of
discrimination in this matter.
In affirming the finding of discrimination by the AJ, the Commission notes
that the credibility determinations of the AJ are entitled to deference
due to the AJ's first-hand knowledge, through personal observations,
of the demeanor and conduct of the witnesses at the hearing. Esquer
v. United States Postal Service, EEOC Request No. 05960096 (September 6,
1996); Willis v. Department of the Treasury, EEOC Request No. 05900589
(July 26, 1990). While the agency argues that the AJ's credibility
findings are not supported by the record, the Commission, after an
independent review, found no significant evidence to contradict the AJ's
findings.
Regarding complainant's remedy, the Commission finds that complainant is
entitled to full, make-whole relief. See Holly v. United States Postal
Service, EEOC Appeal No. 01950220 (August 21, 1997) citing, Franks
v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle Paper
Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. United States
Postal Service, EEOC Appeal No. 01933395 (July 21, 1994). However
complainant's back pay shall be offset by the amount of wage-replacement
benefits she received under FECA, and any wages earned. See Holly, supra,
citing Davis v. United States Postal Service, EEOC Petition No. 04900010;
see also Finlay v. United States Postal Service, EEOC Appeal No. 01942985
(April 29, 1997) citing Wallis v. United States Postal Service, EEOC
Appeal No. 01950510 (November 13, 1995); Scott v. United States Postal
Service, EEOC Appeal No. 01921641 (June 11, 1993). The Commission also
finds that complainant is entitled to compensatory damages. Although
complainant did not mention �compensatory damages� in her complaint, or on
appeal, the Commission interprets the following language in complainant's
contentions on appeal as a request for compensatory damages:
Although the amounts received from [complainant's Federal Employee
Workers' Compensation (FECA) claim] could be offset from her backpay,
she is entitled to all relief authorized under Title VII, including back
pay, front pay, pre- and post judgement interest, the value of accrued
benefits, injunctive relief, and attorneys fees and costs.
See Robertson v. United States Postal Service, EEOC Request No. 05980323
(October 1, 1998) (Statement in complaint that complainant wanted to be
reinstated and receive all lost pay, including any and all other relief
available is a request for compensatory damages).
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE the agency's final decision with regard to
allegations #1, #2, and #3, and find that complainant was discriminated
against based on her national origin and sex when she was subjected to
a hostile work environment. The Commission AFFIRMS the FAD with respect
to allegation #4, and finds no discrimination, and REMANDS the FAD with
respect to compensatory damages. In order to remedy complainant for
its discriminatory actions, the agency shall comply with the following
ORDER:
ORDER
The agency is ORDERED to take the following remedial action:
The agency shall take reasonable steps tailored to cure or correct
the particular source of the identified discrimination and to minimize
the chance of its recurrence, including but not limited to providing
EEO sensitivity training to all personnel at the Training Facility to
ensure that neither complainant nor any other employee is subjected to
discrimination in the future.
Within fifteen (15) days from the date this decision becomes final, the
agency shall immediately award complainant the certificate of completion
from the Training Facility.
Fifteen (15) days from the date this decision becomes final, the agency
shall immediately offer complainant reinstatement/promotion to the
Immigration Examiner position and grade level she would have attained
through career ladder promotions, had she not been dismissed by the
Training Facility based upon discrimination. Complainant shall be given
a minimum of fifteen days from receipt of the offer within which to accept
or decline the offer. Failure to accept the offer within the time period
set by the agency will be considered a rejection of the offer, unless
complainant can show that circumstances beyond her control prevented a
response within the time limit. Such reinstatement/promotion shall be
retroactive to the date of her dismissal from the Training Facility,
January 19, 1990.
The agency shall provide complainant with full back pay, retroactive to
January 19, 1990, with interest, including retroactive seniority and
appropriate benefits, at the grade level(s) to which complainant would
have been entitled if she had graduated from the Training Facility
and become an Immigration Examiner, less interim earnings, if any, and
offset by the amount of any wage-replacement benefits received under
FECA. The agency shall determine the appropriate amount of back pay and
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.
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 complainant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
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 issues of compensatory damages and attorney's fees and costs are
REMANDED to the Hearings Unit of the Los Angeles District Office.
Thereafter, the Administrative Judge shall issue a decision on these
issues in accordance with 64 Fed. Reg. 37,644, 37,657 (1999) (to be
codified at 29 C.F.R. � 1614.109), and the agency shall issue a final
action in accordance with 64 Fed. Reg. 37,644, 37,657-58 (1999) (to be
codified at 29 C.F.R. � 1614.110) within forty (40) days of receipt of
the Administrative Judge's decision. The agency shall submit copies of
the Administrative Judge's decision and the final agency action to the
Compliance Officer at the address set forth below.
The agency shall post a notice as directed below.
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 evidence that the corrective action
has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at the Training 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
July 19, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999) where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The record indicates that this issue relates to the actions taken
by the agency's District Office after complainant returned from the
Glynco facility. Apparently, as a result of complainant's failure to
successfully complete the Glynco program, the agency initially proposed
her termination, but later rescinded the action since it would only be
appropriate if complainant had been a probationary employee. Subsequently,
the agency offered complainant a GS-963-5 clerical position before
restoring her to her former position at a lower, GS-7 level.
3In her statement on appeal, complainant does not challenge the agency's
final decision adopting the AJ's finding of no discrimination at the
District Office.