0120054829
07-10-2007
Ann Segura Minardi, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.1
Ann Segura Minardi,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.1
Appeal No. 0120054829
Agency Nos. HS 04-0406, HS 04-0586, HS 04-0775
DECISION2
On July 11, 2005, complainant filed an appeal from the agency's May 27,
2005, final decision concerning her equal employment opportunity (EEO)
complaints alleging employment discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission affirms,
in part, and reverses, in part, the agency's final decision.
ISSUES PRESENTED
The issues presented herein are whether the agency discriminated against
complainant on the bases3 of national origin (Hispanic; Mexican),4 sex
(female), and in reprisal for prior protected EEO activity when:
1. she was denied performance awards (claims 1, 31);
2. her request for a three day flexiplace scheduled was denied (claims 3,
4)
3. she was not selected as a Technical Reviewer (claims 7, 18);
4. she was not selected as acting Branch Chief (claims 22, 44);
5. she was prohibited from requesting advanced sick leave, issued
a leave restriction letter, charged absent without leave (AWOL),
denied compensatory time, charged leave without pay (LWOP), and denied
administrative and official leave (claims 5, 6, 10, 32-41, 46);
6. she was not selected for the position of Supervisory Attorney Advisor,
GS-0905-15, Vacancy Announcement No. HQORR/02-017KH (claim 43); and
7. she was not selected for the temporary one-year position of Supervisory
Attorney Advisor, GS-0905-15, Vacancy Announcement No. HQORR/03-001GH
(claim 49).
And whether the agency subjected her to a hostile work environment when,
for example:5
a. she was not provided with sufficiently complex cases, not assigned
cases subject to a deadline, required to make lengthy edits in a short
time frame, and Technical Reviewers initially reviewed her work prior
to submitting it to the Branch Chief (claims 17, 20, 23, 24);
b. her Legal Case Inventory System (LCIS), i.e., case log, status codes
were not updated (claim 27);
c. she was admonished for sending a series of emails regarding a request
for advanced sick leave, and criticized publicly by the Acting Textiles
Branch Chief and the Commercial Rulings Division Director (claim 45, 47);
d. she was denied funding and/or leave to attend
training/seminars/conferences (claims 8, 9, 10, 11);
e. she experienced problems with her computer, including a third-party
having access to her computer files, her computer malfunctioning, and
the inability to use her laptop at her home office (claims 12, 13, 14);
f. she was assigned the clerical task of assembling a notebook for the
Operational Oversight Division (claim 15); and
g. on May 29, 2002, she was ordered to attend an Employee Proficiency
Review (EPR) meeting, and on November 12, 2002, she was issued a
memorandum identifying three areas for improvement in her work product
(claims 16, 26).
BACKGROUND
During the relevant time, complainant worked as an Attorney Advisor,
GS-0905-14, in the U.S. Customs and Border Protection, Office of
Regulations and Rulings (ORR) in Washington, D.C. For 17 years, she has
worked as an attorney with the agency, rotating through four Branches,
including Penalties, Intellectual Property Rights, Food and Chemical
Classification, and Textile Classification. The record reveals that
from July 1992 through February 2003, the Chief, Textile Branch (JE),
supervised complainant. Thereafter, complainant worked under the direct
supervision of another Chief, Textile Branch (GH).
According to complainant, JE never initiated the opportunity for her
to conduct presentations or training, nor did he appoint her to be
acting Branch Chief in his absence or Technical Reviewer for rulings
prepared by junior level attorneys. She maintained that he assigned less
complex cases to her, transferred her cases to junior level attorneys,
and never assigned her policy issues or regulatory work. Moreover,
she asserted that he required her to submit detailed medical reports to
prove that she needed to work from home during the last trimester of her
"high-risk" pregnancy; and that he allowed other employees, who were not
members of her protected group, to work at home full-time postpartum,
while her entire postpartum leave of approximately 8 months was unpaid.
Finally, she asserted that she was "unjustifiably criticized, maligned,
threatened, disciplined, and humiliated" by JE, and as a result, her
professional career suffered.
Complainant filed five EEO complaints asserting the above-stated claims.
The agency consolidated the complaints and conducted a thorough
investigation. At the conclusion of the investigation, complainant
was provided with a copy of the report of investigation and notice
of her right to request a hearing before an EEOC Administrative Judge
(AJ) or a final agency decision. Complainant requested a final decision
(FAD), and the agency issued the FAD pursuant to 29 C.F.R. � 1614.110(b).
Therein, the agency concluded that complainant failed to prove that she
was subjected to discrimination as alleged.
The agency assumed arguendo that complainant established a prima facie
case of discrimination with respect to race, sex, national origin, and
in reprisal. It then analyzed whether management provided legitimate
nondiscriminatory reasons for each of its actions. With respect to
awards, for FY 2000, JE stated that complainant only performed work for
three to four months of said year, thus an award was not justified.
For FY 2002, JE stated that he did not nominate her for an award
because he did not believe that her performance, while fully successful,
warranted one. As to flexiplace, JE testified that complainant was not
present during "open season" for the program; was allowed two days of
work from home, as was the norm; and his decision was based on the needs
of the office at the time.
With respect to complainant's nonselection as a Technical Reviewer,
JE asserted that, for the first position, he selected the person on his
staff that could best perform the function, a senior attorney who was
recognized as an expert in a particular area of Customs law. He further
stated that, as to the second position, complainant was not considered
to be qualified to perform the Technical Reviewer function because of
his concerns with her conduct, performance, and leave issues. Similarly,
as to her nonselection as acting Branch Chief, Sl stated that complainant
was not asked to act for him because of his concerns with her conduct,
performance, and leave issues.
As to her leave usage, Sl explained that complainant began fiscal year
1999 with a forwarded negative sick leave balance of negative 55.2
hours. Subsequently, during fiscal year 1999, complainant continued
to accrue negative sick leave up to negative 217.2 hours before taking
maternity leave in pay period 23. JE stated that he granted advanced
sick leave in almost every pay period in 1999. At the time complainant
returned from maternity leave in pay period 16 of fiscal year 2000, she
carried a negative sick leave balance in excess of negative 177 hours for
all of leave year 2000. JE explained that complainant was placed on leave
restriction because she had a negative leave balance of 125 hours, she
had taken 121 hours of LWOP, and she continued to take leave. Moreover,
JE testified that complainant was never charged AWOL. Instead, she was
informed that, if she did not elect to use LWOP, the only alternative
was AWOL. Shortly after complainant's request for compensatory time,
the Branch discontinued the use of compensatory time, pending the
establishment of uniform procedures.
Finally, as to her nonselection for the Supervisory Attorney Advisor
position, the record revealed that the Interview Panelists did not
recommend complainant for the position because she performed poorly
during the interview. Specifically, she referred the Interview Panelist
to her application package in response to specific questions they posed
to her relating to her experience and knowledge. With respect to her
nonselection for the temporary position, the Assistant Commissioner stated
that he was looking for someone with a background in the Penalties Branch.
In addition, the Assistant Commissioner considered the Selectee a team
player, who was known in the trade community, had more recent experience
than complainant with the Bio-Terrorism Act, and had served as an
Attorney Advisor in the Penalties or Miscellaneous Penalties Branches
of ORR for 22 years, including 17 years as a Senior Attorney Advisor.
The agency further considered all of complainant's arguments in rebuttal
to management's legitimate nondiscriminatory reasons, but it found that
she failed to show those reasons were pretextual.
To the extent that the agency analyzed complainant's complaint as one
of hostile work environment, the agency found that management identified
areas in which complainant needed improvement. Moreover, it determined
that, inasmuch as a reasonable person would have to find the environment
hostile, the record failed to show the "level of specificity" necessary
to prove complainant's claim. The agency also found that complainant
failed to establish a causal connection between the alleged discriminatory
incidents and her prior EEO activity.
CONTENTIONS ON APPEAL
On appeal, complainant asserts, among other things, that the agency
ignored the statements made by JE during the May 29, 2002, EPR meeting,
which constituted direct evidence of reprisal. Specifically, she
contends that JE opened the meeting by "angrily" indicating that
she had made negative references against him in her EEO complaint,
and he told her that she was her "own worst enemy and engaging in
self-destructive behavior." With respect to the flexiplace program,
she maintains that two Caucasian female Attorney Advisors were not
denied privileges under the program. Complainant also asserts that the
agency failed to provide legitimate, nondiscriminatory reasons for her
nonselection for the Technical Reviewer assignment or the Supervisory
Attorney Advisor position. Furthermore, with respect to the Supervisory
Attorney Advisor position, she contends that, although she received
a "Fully Successful" performance rating, she was issued a memorandum
identifying three areas for improvement of her work product on November
12, 2002, and she believes that the agency took this action because she
had applied for the Supervisory Attorney Advisor position. Finally,
she asserts that the agency's reason for denying her compensatory time
is pretextual because she was meeting case production requirements.
In response, the agency asserts that the statements made during the
May 29, 2002, EPR meeting did not constitute direct evidence of
reprisal because JE did not say he would take a specific adverse
action against her. Regarding her flexiplace claims, the agency
maintains that complainant was allowed to work a flexiplace schedule
two days a week which was consistent with all attorneys in the office.
The agency concedes that, at one point, one female attorney was allowed
to work from home three days a week. With respect to the Technical
Reviewer assignment, the agency asserts that JE provided a legitimate,
nondiscriminatory reason that he selected the individual who could best
perform the function. The agency further asserts that complainant has not
shown the selectees were not qualified, that she was "plainly superior,"
or that her 14 years of experience in ORR proved she was plainly superior
to the second selectee with 3 years of experience. As to the Supervisory
Attorney Advisor position, the agency notes complainant's documented
poor interview. Finally, the agency requests that we not consider new
claims or new evidence provided by complainant on appeal.
Complainant filed a response to agency's opposition brief in which she
sought to rebut each of the agency's contentions.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
At the outset, we note that the Commission has divided complainant's claim
into two categories, those that raise a claim of disparate treatment
(claims 1-7 herein) and those that raise a claim of harassment (claims
a-g herein).6
Disparate Treatment
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks,
509 U.S. 502, 519 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Service,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of this decision, the Commission assumes that complainant
established a prima facie case of discrimination on the bases of national
origin, sex, and in reprisal. 7 Therefore, the burden now shifts to
the agency to articulate legitimate, nondiscriminatory reasons for its
actions. McDonnell Douglas, 411 U.S. at 802-04. The agency has provided
the following reasons: (1) for FY 2000, an award was not justified
because complainant only performed work for three to four months of the
fiscal year; and for FY 2002, JE did not nominate her for an award because
he did not believe that her performance, while fully successful, warranted
one; (2) complainant was not present during "open season" for the program,
two days of work from home was the norm, and JE's decision was based on
the needs of the office at the time; (3) one of the persons selected,
a senior attorney who was recognized as an expert in a particular area
of Customs law, could best perform the function, and complainant was not
considered to be qualified to perform the Technical Reviewer function,
because of JE's concerns regarding her conduct, performance, and leave
issues; (4) JE did not ask complainant to act for him due to his concerns
with her conduct, performance, and leave issues; (5) complainant possessed
a negative sick leave balance in excess of negative 177 hours for all of
leave year 2000, she had a negative leave balance of 125 hours when she
was placed on leave restriction, she had taken 121 hours of LWOP, she was
never charged AWOL, and the Branch discontinued the use of compensatory
time, pending the establishment of uniform procedures; (6) complainant
performed poorly during the interview, referring the Interview Panelist
to her application package in response to specific questions; and (7)
the Assistant Commissioner was looking for someone with a background in
the Penalties Branch, and the Selectee was considered a team player,
who was known in the trade community, had more recent experience than
complainant with the Bio-Terrorism Act, and had served as an Attorney
Advisor in the Penalties or Miscellaneous Penalties Branches of ORR for
22 years, including 17 years as a Senior Attorney Advisor.
Since the agency articulated legitimate, nondiscriminatory reasons for its
actions, the burden returns to the complainant to demonstrate that the
agency's articulated reasons were pretext for discrimination. Burdine,
at 253. Here, after a careful review of complainant's arguments, we find
that complainant fails to show that the agency's reasons were pretext
for discrimination. With respect to claim (2), the flexiplace program,
complainant maintains that two Caucasian female Attorney Advisors
were not denied privileges under the program. The record reveals,
however, that complainant was only denied participation in the program
for one month, that in January 2001, she resumed working a flexiplace
schedule two days a week, and that this schedule was consistent with
all attorneys in the office. The agency concedes that, at one point,
one female attorney was allowed to work from home three days a week.
However, JE testified that the office flexiplace norm was two days a week,
and he made his decision based upon the needs of the office at the time.
With respect to claim (5), her leave usage, complainant maintains that
the agency failed to consider her evidence and failed to provide her with
information about her comparators. We determine, however, that the agency
adequately developed the record with regard to complainant's leave usage,
and inasmuch as she asserts that the agency did not provide her with
evidence of comparators, she does not identify with any particularity,
who, if anyone, carried a similar leave deficit. To the extent that
complainant asserts that the agency's reason for denying her compensatory
time is pretextual because she was meeting case production requirements,
we note that the Branch discontinued the use of compensatory time.
For these reasons, we find that the agency acted reasonably in denying
certain leave requests, and in placing complainant on leave restriction
in light of complainant's substantial negative leave balances.
Complainant also asserts that the agency failed to articulate legitimate
nondiscriminatory reasons for its actions with respect to claims (1),
(3), and (6), i.e., awards, and her nonselection for Technical Reviewer
and Supervisory Attorney Advisor. To meet its burden, an agency need
only articulate a legally sufficient reason that justifies its decision.
See Thompson v. United States Postal Service, EEOC Appeal No. 01971189
(August 31, 2000)(citing Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 254 (1981)). Under this standard, we find that the agency's
explanations are sufficient to satisfy its burden. With respect to
the awards, the agency asserted that complainant's performance did not
justify one, and complainant has not provided any evidence that her
performance was worthy of an award, nor has she identified any projects
that would have warranted her receiving an award. Instead, she concedes
that her performance rating was "Fully Successful." As to the Technical
Reviewer position, JE provided information about the credentials of the
first selectee and explained its concerns about complainant's conduct,
performance, and leave issues with regard to the second selection.
Similarly, with respect to the Supervisory Attorney Advisor, the agency
noted complainant's poor performance during her interview, a reason with
sufficient clarity to allow complainant a full and fair opportunity
to demonstrate that the reason was pretext. See Parker v. United
States Postal Service, EEOC Request No. 05900110 (April 30, 1990);
Lorenzo v. Department of Defense, EEOC Request No. 05950931 (November
6, 1997). Although complainant contended that the agency issued a
memorandum identifying three work product areas that needed improvement
because she had applied for the Supervisory Attorney Advisor position,
we find that complainant presents nothing but her bare assertions that
the agency sought to diminish her credentials. Instead, the record
reveals that the agency issued similar memoranda to others, not in her
protected classes, in an effort to improve their work products as well.
Finally, the agency provided similar reasons with respect to claim (4),
nonselection as acting Branch Chief, and claim (7), nonselection as
temporary Supervisory Attorney Advisor, and complainant failed to show
that the agency's reasons are pretext for discrimination.
Accordingly, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we find that complainant
failed to show that she was subjected to discrimination on the bases of
national origin, sex, or in reprisal with regard to claims (1) through
(7), as identified herein.
Harassment/Retaliation
Complainant also alleged that she was subjected to reprisal. In relevant
part, complainant reported that, during the May 29, 2002, EPR meeting,
JE opened the meeting by "angrily" indicating that complainant had made
negative references against him in her EEO complaint, and he told her that
she was her "own worst enemy and engaging in self-destructive behavior."
See Claim g. According to complainant, JE's statements are direct
evidence of retaliatory animus. In response, the agency asserted that
JE's statements did not constitute direct evidence of reprisal because JE
did not say he would take a specific adverse action against her. Instead,
it maintained that her performance deficiencies were the primary reason
for the meeting.
The Commission has stated that adverse actions need not qualify as
"ultimate employment actions" or materially affect the terms and
conditions of employment to constitute retaliation. EEOC Compliance
Manual, Section 8: Retaliation (May 20, 1998); Burlington Northern and
Santa Fe Railway Co. v. White, 548 U.S.____, 126 S.Ct. 2405 (2006)
(finding that the anti-retaliation provision protects individuals
from a retaliatory action that a reasonable person would have found
"materially adverse," which in the retaliation context means that
the action might have deterred a reasonable person from opposing
discrimination or participating in the EEOC charge process); see also
Lindsey v. United States Postal Service, EEOC Request No. 05980410
(November 4, 1999). Instead, the statutory retaliation clauses prohibit
any adverse treatment that is based upon a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging
in protected activity. Id.
We note that, while the agency failed to acknowledge that JE made comments
regarding complainant's EEO activity during the May 29, 2002, EPR meeting,
record evidence reveals otherwise. Specifically, the record reflects
that, during a deposition on January 15, 2004, JE admitted that he said,
"You said negative things about me in your EEO complaint[,] and [y]ou
are your own worst enemy and engaging in self-destructive behavior." JE
Depo. 174:14-20, Jan. 15, 2004 (JE quote: "I said that.").
In light of the evidence presented, the Commission finds JE's reference
to complainant having filed an EEO complaint and later comments about her
behavior inappropriate. Indeed, such comments constitute the type of
activity that is reasonably likely to deter complainant or others from
engaging in protected EEO activity. Inasmuch as JE testified that he
sought to counsel complainant regarding her performance, the Commission
finds that JE should not have discussed complainant's EEO complaint with
her during a meeting in which he wished to counsel her on conduct and
performance issues. In so doing, JE, perhaps unintentionally, blurred
the subject matter of the discussion between complainant's EEO activity
and her performance such that a reasonable person might be deterred from
engaging in EEO activity in the future. Accordingly, the Commission
finds that JE's action of discussing complainant's EEO activity during
the aforesaid meeting constituted reprisal.8
Although complainant has proven that JE acted in reprisal when he
discussed her EEO complaint during the May 29, 2002 EPR meeting,
complainant has not necessarily established that the agency created a
hostile work environment because of her EEO activity or another of her
protected bases. Accordingly, the Commission shall consider whether
the record as a whole reflects that a hostile work environment existed
due to reprisal or another protected basis.
Harassment of an employee that would not occur but for the
employee's race, color, sex, national origin, age, disability,
religion, or in reprisal is unlawful if it is sufficiently patterned
or pervasive. Garretson v. Department of Veterans Affairs, EEOC Appeal
No. 01945351 (April 4, 1996); McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985). The Commission's Enforcement Guidance: Vicarious
Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999) identifies two types of such harassment:
(1) harassment that results in a tangible employment action; and (2)
harassment that creates a hostile work environment. Based on the facts
of this case, we will also analyze this matter as an allegation of
harassment that creates a hostile work environment.
To establish a claim of harassment, complainant must show that: (1) she
belongs to a statutorily protected class, e.g., national origin, sex,
and/or reprisal; (2) she was subjected to unwelcome conduct related
to race, national origin, sex, and/or reprisal; (3) the harassment
complained of was based on race, national origin, sex, and/or reprisal;
(4) the harassment had the purpose or effect of unreasonably interfering
with her work performance and/or creating an intimidating, hostile, or
offensive working environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982). The harasser's conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.,
EEOC Notice No. 915.002 (March 8, 1994).
In the present case, the Commission finds that complainant has not
established that she was harassed on the bases of her national origin,
sex or in reprisal. We find that record evidence does not indicate
that a discriminatory animus based upon her prior EEO activity or on
her protected classes was the motivation behind management's actions.
Specifically, we find compelling JE's testimony that he had concerns
regarding complainant's conduct, performance, and leave issues, and
we further find that the record supports his concerns. For example,
complainant possessed a substantial negative leave balance; her written
work product required revisions; she arrived at erroneous conclusions of
law; she did not send her closed cases to the file room to be processed
by the Legal Reference Staff; over an 18 month period, she only placed
one of her numerous rulings on the pre-LEXIS database; she did not
respond to emails or telephone calls in a timely manner, if at all;
and she did not comply with the flexiplace requirement that she check
in with JE, the Branch Chief, choosing instead to call his secretary.
While complainant may disagree with management's assessment of her work,
she fails to establish that said assessment is inaccurate, and the record
supports many of the agency's concerns.
Moreover, the Commission finds that complainant and JE appeared to have
experienced interpersonal conflict, but with the exception of the May 29,
2002, EPR meeting, nothing in the record indicates that said conflict
was due to her prior EEO activity or a discriminatory animus based on her
protected classes. We note that, while statements made in May 29, 2002,
EPR meeting might have deterred a reasonable person from engaging in EEO
activity, the record reveals that, for every action taken by management,
be it tangible or part of an alleged pattern of harassment, the agency
articulated a legitimate nondiscrimination reason for the action, and the
record supports that action.9 Accordingly, for the foregoing reasons,
the Commission finds that complainant has failed to prove that she
was subjected to a hostile work environment on the bases of her race,
national origin, sex, or in reprisal.10
CONCLUSION
Based on a thorough review of the record and contentions on appeal,
including those not specifically addressed herein, we affirm, in part, and
reverse, as to claim g, the agency's decision finding no discrimination.
This case is hereby remanded to the agency to take remedial action in
accordance with this decision and the Order below
ORDER (C0900)
The agency is ordered to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall conduct a supplemental investigation to determine
whether complainant is entitled to compensatory damages incurred as
a result of the agency's discriminatory action. See supra., at 8-9.
The agency shall allow complainant to present evidence in support of
her compensatory damages claim. See Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 5, 1993). Complainant shall cooperate
with the agency in this regard. Thereafter, the agency shall issue a
final decision. 29 C.F.R. � 1614.110(b). The supplemental investigation
and issuance of the final decision must be completed within ninety (90)
calendar days of the date this decision becomes final. A copy of the
final decision must be submitted to the Compliance Officer, as referenced
below.
2. The agency should provide training to JE regarding his obligation
not to 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 under, the Federal equal employment
opportunity laws. The Commission does not consider training to be a
disciplinary action.
3. The agency shall consider taking disciplinary action against JE.
The agency shall report its decision. 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.
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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its U.S. Customs and Border Protection,
Office of Regulations and Rulings (ORR) in Washington, D.C. 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 (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 (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
____7-10-07______________
Date
1 Complainant originally filed her complaint with the U.S. Customs
Service, Department of the Treasury. However, effective March 1, 2003,
in accordance with the Homeland Security Act, her complaints came under
the jurisdiction of the Department of Homeland Security.
2 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
3 Complainant also alleged that she was discriminated against on the
basis of parental status. The Commission does not have jurisdiction of
claims filed on the aforesaid basis, therefore we will not address said
basis herein.
4 Although complainant also alleged discrimination on the basis of race,
identified as Hispanic, the Commission notes that it considers the
term "Hispanic" to be a national origin rather than a racial group.
Accordingly, we will analyze complainant's claim as one of national
origin discrimination.
5 We note that the list presented is not exhaustive. Although complainant
and the agency identified 49 separate claims, 42 of those claims makeup
complainant's claim of hostile work environment, and will be addressed
accordingly herein.
6 We again note that claims a-g represent a sampling of the incidents
raised by complainant, and should not be considered an exhaustive list.
The Commission did, however, consider all of the incidents set forth
by complainant.
7 Inasmuch as complainant argues that the agency failed to consider
whether she established a prima facie case of discrimination and presented
direct evidence of discrimination, we find that pursuant to United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983),
the agency properly analyzed complainant's complaints.
8 We note that JE's statements did not constitute direct evidence of
reprisal because JE did not say he would take a specific adverse action
against complainant.
9 We note that, although complainant contended that the agency failed to
explain why a third-party had access to her computer files, the record
indicates that JE did not authorize the practice, and complainant failed
to show that the action was taken for discriminatory purposes.
10 The Commission notes that, to the extent complainant describes new
claims that were previously raised as part of the present complaint, it
is inappropriate for her to raise these new claims for the first time
as part of the current appeal. See Hubbard v. Department of Homeland
Security, EEOC Appeal No. 01A40449 (April 22, 2004). Therefore, our
analysis herein focused only on those claims that were properly asserted
as part of her original 5 complaints and investigated.
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0120054829
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120054829