07A30072
06-04-2004
Catherine Evans, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Catherine Evans v. Department of Homeland Security
07A30072
06-04-04
.
Catherine Evans,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 07A30072
Agency No. 00-2262
Hearing No. 330-A1-8003X
DECISION
On February 6, 2003, following the issuance of a final order from
the Department of the Treasury, complainant filed an appeal with
this Commission. On February 13, 2002, following its final order,
the Department of the Treasury also filed an appeal. Both appeals
are accepted by the Commission pursuant to 29 C.F.R. � 1614.405, and
consolidated herein for decision. Following the filing of this appeal,
the U.S. Customs Service, where the instant complaint arose, became part
of the Department of Homeland Security, and was renamed the U.S. Customs
and Border Protection Service (hereinafter referred to as the agency).
The agency employed complainant as a pilot at its Air Branch in Houston,
Texas. On June 23, 2000, she filed a complaint in which she claimed
that the agency had discriminated against her on the basis of sex when:
She was denied the following supervisory details:
Assignments as acting group supervisor (AGS) in Mexico between February
1997 and September 1999.
Assignment as Pilot-in-command (PIC) on a deployment to Aruba between
March 15 and March 31, 2000.
Assignment as AGS for Houston for 30 days, beginning on July 10, 2000.
She was suspended for two days, effective April 10 and 11, 2000.
Complainant identified the Aviation Group Supervisor and other supervisors
and managers as the officials responsible for the acts of discrimination
at issue in her complaint. The agency investigated the complaint and
thereinafter referred the matter to an EEOC Administrative Judge (AJ),
who held a hearing and issued a decision finding discrimination on claim
(1), but not on claim (2). The AJ awarded the following remedies:
Pecuniary damages: $717.74
Non pecuniary damages: $7,500.00
Attorneys' fees and costs: $8,610.75
The agency thereupon issued a final order in which it declined to
implement the AJ's decision. The agency rejected the AJ's discrimination
finding on claim (1), but implemented the AJ's no-discrimination finding
on claim (2). Consequently, the agency declined to implement the relief
that the AJ ordered.
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, including arguments and evidence not
specifically discussed in this decision, we discern no basis to disturb
the AJ's finding of discrimination. The findings of fact are supported
by substantial evidence, and the AJ correctly applied the appropriate
regulations, policies, and laws, both as to her finding of liability
and the relief ordered. The Commission therefore reverses the agency's
final order with respect to claim (1) and remands the matter to the
agency to take corrective action in accordance with this decision and
the Order below. The Commission affirms the agency's final order with
respect to claim (2).
ORDER (C0900)
Within thirty (30) calendar days of the date that this decision becomes
final:
The agency shall award complainant nonpecuniary compensatory damages
in the amount of $7,500.00.
The agency shall award complainant pecuniary compensatory damages in the
amount of $717.74. This award shall be contingent upon complainant
producing the bills, receipts, or other documentation supporting
this claim.
The agency shall award complainant attorney's fees and costs in the
amount of $8,610.75.
The agency shall provide 8 hours of training to the Aviation Group
Supervisor and the other officials identified in complainant's complaint
dated June 23, 2000, to the extent that those officials are still
employed by the agency. The training shall focus on the rights and
responsibilities of management under federal employment discrimination
statutes. The Commission does not consider this training to constitute
disciplinary action in any way.
The agency shall consider taking disciplinary action against the
Aviation Group Supervisor and the other officials identified in
complainant's complaint dated June 23, 2000, as being responsible for
the discriminatory acts at issue in that complaint. 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 these individuals have left the agency's employ, the agency shall
furnish documentation of their departure dates.
The agency shall 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.
The agency shall post at its Houston Air Branch 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.
If complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), she may be entitled to an additional
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.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
_____06-04-04_____________
Date