0720050059
02-23-2007
Regina Pratt, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Regina Pratt,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 07200500591
Hearing No. 350-2002-08194x
Agency No. HS050258
DECISION
Following its January 19, 2005 final order, the agency filed a timely
appeal in which it requests that the Commission affirm its rejection
of an EEOC Administrative Judge's (AJ) finding of discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
On January 4, 1994, complainant, at the time a Detention Enforcement
Officer (DEO) in the agency's Florence Service Processing Center in
Florence, Arizona, filed a complaint of sex discrimination. Complainant
challenged the agency's local policy that "[a]n alien should never be
escorted by an officer of the opposite sex." An AJ issued a decision
without a hearing finding that the policy was facially discriminatory
and that the agency had not established that same sex is a bona fide
occupational qualification (BFOQ) for escort details. Thereafter, the
agency issued a final order declining to implement the AJ's decision.
In Pratt v. Department of Justice, EEOC Appeal No. 01972502 (August
18, 2000),2 the Commission upheld the AJ's decision. Specifically,
the Commission found that the agency's local policy was facially
discriminatory since in essence it prohibited female DEOs from escorting
male detainees, and male DEOs from escorting female detainees. The
decision noted that the primary essence of the function at issue is "to
transport aliens back to their native country in a safe and dignified, yet
firm, manner." The Commission found that the agency failed to carry its
burden of establishing there are no other less discriminatory alternatives
available to avoid detainees' privacy concerns during escort assignments,
and thus, determined the agency's BFOQ defense failed. Among the relief
ordered in the decision, the Commission ordered the agency to review its
policies and procedures relating to escort details and revise them to
protect the rights of employees to be free from unlawful discrimination
based on sex.
On January 7, 2002, the Commission docketed a petition for enforcement
to examine the enforcement of the order set forth in EEOC Appeal
No. 01972502. In Pratt v. Department of Justice, EEOC Petition
No. 04A20007 (September 25, 2002), the Commission found that the agency
submitted evidence that it complied with our prior decision by revising
the policy as described in the previous appellate decision. Additionally,
the Commission refused to consider complainant's concerns surrounding a
subsequent 1998 national policy regarding escorts requiring "[a]t least
one escort shall be of the same sex as the detainee" since the national
policy was instituted on the agency's initiative and not in response to
the Commission's Order and also was not subject of the prior appeal.
At the time of events giving rise to the present complaint, complainant
worked as a Supervisory Detention Enforcement Officer, GS-1802-09, at
the agency's Florence Service Processing Center in Florence, Arizona
(hereinafter referred to as Florence Facility). At the time of the
complaint the Florence Facility housed 1,140 detainees of which 1,070
were males and 70 were females. As part of her job duties, complainant
escorted alien detainees on commercial flights. Normally, a DEO and a
deportation officer (DO) are assigned to escort aliens that have been
classified as Group 3. Group 3 aliens are those that have been convicted
of a violent crime or who have demonstrated violence while being detained.
Normally, when an escort is needed, notice is sent to the supervisory DEOs
indicating an escort is needed, and indicating the sex of the detainee.
Two separate officer corps are used to determine the escorts for an
assignment and both assign escorts on rotation of two separate "wheels,"
listing all officers assigned at the Florence Facility. Generally,
if an officer is skipped due to unavailability, his or her name remains
on the wheel as the next available individual for a detail. However,
if the officer declines the assignment (referred to as a detail in the
record), his or her name is moved to the bottom of the wheel.
In 1998, the agency created a nationwide policy, the National Enforcement
Standards for Escorts (hereinafter referred to as National Standards),
to regulate the assignment of escorts to detainees. The national
policy determined which aliens required escorts on commercial aircraft.
The national policy provided "[a]ll detainees in [agency] custody shall be
escorted in a manner that is safe, secure, humane, and professional." With
regard to escorting Group 3 detainees on commercial aircraft, the policy
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."
On October 10, 2001, complainant filed an EEO complaint alleging that
she was discriminated against on the basis of sex (female) when: on
August 10, 2001, complainant was not selected for an escort to Jamaica.
Specifically, on August 10, 2001, complainant's name appeared on the
"wheel" as the next individual to go on a detail. The detail at
issue involved the transportation of a male detainee to Jamaica with
another female officer. Complainant was removed from the detail by her
supervisor, S1, and a male officer was appointed.
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 AJ. Complainant timely requested a hearing on her
complaint. The AJ held a hearing on August 17, 18, and 27, 2004. The AJ
issued a decision on December 8, 2004. In her decision, the AJ noted
that in an August 4, 2004 Order, she found the National Standards was
facially discriminatory. The AJ stated that the "essence of the Florence
Processing Center is to detain, process and assist in deporting aliens."
The AJ found that the agency failed to establish that detainees' privacy
rights would be infringed by escorts of the opposite sex.
With regard to the issue of privacy raised by the agency, the AJ noted
that there is no policy or rule that an alien must be accompanied to the
bathroom by an escort of the same sex or that the escort must observe
the detainee using the toilet. The AJ found the agency did not establish
that an escort of the opposite sex of the detainee could not ensure the
privacy of the detainee and the public while escorting the individual
to the restroom. The AJ noted that complainant presented evidence that
male escorts accompanied a female detainee in violation of the National
Standards on at least two occasions, without incident. The AJ noted
that Deportation Officer X (DO X) testified regarding his experience
in escorting a female detainee with another male officer. DO X stated
that in his experience, the detainee either did not use the bathroom,
or waited until she was on the plane to use the restroom. The AJ noted
the testimony revealed that when a detainee uses a restroom on a plane,
the detainee is escorted to the restroom on the plane and returned
to his or her seat. Further, the AJ noted that complainant presented
testimony that single stall employee restrooms and holding cells with
bathroom facilities are available at airports. The AJ also noted that
the detainee could use the restroom on an airplane. The AJ recognized
that the testimony revealed use of a public restroom is a last resort.
Further, the AJ noted that testimony revealed assistance from airport
security was available and had been used by officers when needed.
With regard to the issue of safety raised by the agency, the AJ noted
that complainant testified regarding her ability to restrain unruly
detainees. The AJ acknowledged complainant received training as a DEO
and was instructed in the use of force and had training in the use of
weapons. The AJ noted the training was not segregated between male and
female officers. The AJ found that complainant testified that female
officers had successfully restrained male detainees when a male escort
was not available. Further, the AJ noted that on a detail, there is
no designation of duties between the officers and that each officer
is involved in every aspect of the escort. Thus, the AJ found female
escorts received the same training and were equally qualified as the male
escorts to control, restrain, and transport a detainee regardless of sex.
The AJ found restroom use can be addressed with an escort of any sex and
a detainee without infringing on the safety of the public through the use
of a single stall facility, holding cells, airplane restrooms, or with
assistance from airport security, if necessary. Thus, the AJ found no
evidence was presented by the agency to substantiate the treatment of
the officers differently to sustain the agency's burden of presenting
a BFOQ.
The agency subsequently issued a final order rejecting the AJ's finding
that complainant proved that she was subjected to discrimination as
alleged and simultaneously filed an appeal to the Commission.
On appeal, the agency argues that the National Standards, requiring an
escort of the same sex as the alien on any commercial flight, is not
a facially discriminatory policy because it applies equally to males
and females. The agency notes that following the Commission's decision
in EEOC Appeal No. 01972502, it sought to ensure compliance with the
National Standards. The agency explains that first it established
a certification program whereby each escort detail was documented.
The agency states that thereafter it created the "Removals, Escorts and
Country Clearance Automation Tool" (RECC) that provided, among other
things, that the sex of at least one of the escorts match the sex of
the alien or group of aliens being escorted. The agency states that
the printout of escorts conducted by the Florence Facility since the
introduction of the RECC system does not show non-compliance with the
National Standards. The agency acknowledges there were two instances
when the Florence Facility failed to abide by the National Standards.
The agency explains one instance was a trip by DO X when the agency was
deciding whether to follow the Commission's previous decision or the
National Standards. The agency notes the other instance was a recent
trip taken within the continental United States which was not controlled
by RECC. The agency notes the recent trip was a scheduling error,
and explains that the individuals involved in the trip were counseled.
The agency also claims that the National Standards do not harm
complainant's ability to do her job, affect her pay, or interfere with
her promotional ability. The agency notes that an employee may be
skipped over on a rotation due to the need to have someone of the same
sex accompany an alien; however, the agency states that the affected
employee, whether male or female, is then offered the next trip.
Thus, the agency argues there is no loss of opportunity to travel to
particular countries. The agency states no employee, because of sex,
gets to go on more details. The agency contends complainant failed
to show that she is "adversely affected" by her status as an employee.
The agency finds the only action apparently complained of is the ability
to go on escorts with another female.
Additionally, the agency reiterates its argument that sex of the escort
is a BFOQ in order to protect the safety of the detainee, the officer,
the traveling public, as well as the privacy rights of the detainee.
The agency notes that outside prison walls, segregation based on sex
exists. The agency notes that outside the facility, escorts do not
control the policies affecting common places such as restrooms which are
segregated by sex. The agency argues that the National Standards seek
to balance places of sex segregation by requiring a same sex escort.
The agency claims that in a post 9-11 world, airport security has been
a great concern to the security of our nation. The agency notes that
FAA regulations on the escort of prisoners require that escorts "[m]ust
accompany the prisoner at all times, and keep the prisoner under control
while aboard the aircraft." 49 C.F.R. � 1544.221(e)(5)(2004). The agency
notes that prisoners are required to be "restrained from full use of his
or her hands by an appropriate device that provides for minimum movement
of the prisoner's hands." 49 C.F.R. �1544.221(g). The agency argues
that standing outside a restroom as implied in the Commission's previous
decision does not satisfy the security required in a post 9-11 society,
and does not comply with the rules issued to ensure safety on airplanes.
Specifically, the agency notes that modern air travel is characterized
by increased delays in airports. The agency notes that FAA regulations
require escorts check in at least one hour prior to departure.
49 C.F.R. � 1544.221(e)(2). The agency notes the Florence Facility
is itself 65 miles from the Phoenix airport. Additionally, the agency
notes other delays are often encountered such as unscheduled departures
or arrivals. The agency claims that the suggestion in the Commission's
previous decision, that an alien could use the bathroom prior to departing
the facility, is just not practical.
Further, the agency noted that the Officer in Charge of Service Processing
for Immigration and Custom Enforcement and Removal (OIC A) testified about
the need to medicate some violent deportees during the trip. For example,
in one case OIC A stated he had to pull down a deportee's pants so the
doctor could give the deportee medication and noted that this occurred
in a restroom. OIC A also testified that under no circumstances should
an alien be allowed to enter a public restroom unescorted. The agency
acknowledged that given time and the proper situation, alternatives
might be possible such as a holding cell in a local airport; however, the
agency argued a national program has to be proactive. The agency also
noted that after a detainee leaves a facility, a search of the detainee
may be necessary if the detainee is in a space that offers the chance
to acquire a weapon. The agency noted the AJ did not address whether
the instances would increase if detainees were allowed private access
into public restrooms.
The agency notes that OIC A testified that on one occasion he had to
perform a pat down search and on another occasion he had to perform a more
invasive search when he believed an alien had acquired matches prior to
boarding an airplane. The agency noted that under the existing agency
policy only an individual of the same sex can perform a more invasive
search. The agency noted that complainant recalled an incident where a
male alien had tried to escape while complainant was part of an escort
detail and because the alien had been out of sight, she had to do a pat
down search of the individual. The agency states if a more invasive
search had been necessary, there were male escorts available to do the
search.
The agency noted that aliens are deported all over the world and stated
there were concerns regarding overnight stays and foreign travel.
The agency stated that in Muslim countries, two males escorting a female
or vice-versa would be contrary to the cultural standards of the nation.
Further, the agency acknowledged that although some countries provide
holding cells, this is not the norm. The agency also noted that flights
routinely get diverted or cancelled and witnesses testified that they
had to spend the night in the airport alone with the detainee or secure
the detainee in a hotel room. The agency stated when the alien is in
a hotel room, it is necessary to rotate the same sex officers to watch
the detainee.
The agency also claimed that the National Standards protect officers
from false allegations of misconduct. The agency noted the AJ found
protection against false allegations is granted by the fact that there
are multiple escorts on details; however, the agency stated that it is
not always possible for both escorts to be with the detainee. Finally,
although the agency claimed that escapes occur even if same sex escorts
are utilized, it argued that the likelihood of escapes would escalate,
especially with public restrooms, if one of the escorts was not the same
sex as the detainee.
In response to the agency's appeal, complainant argues that the National
Standards is a facially discriminatory policy and argues that the agency
did not show that sex is a BFOQ of the DEO position. Complainant notes
that the agency's witnesses testified that it would be more "convenient,"
"preferable," or would "present a better image" to have an officer of the
same sex as the detainee on escort details; however, complainant claims
the agency failed to satisfy its burden to show sex satisfied the BFOQ
defense. Complainant notes that the agency's witnesses all presented
testimony regarding the use of bathroom facilities and admitted that
there were several options to locate secure restroom facilities that did
not involve the use of public restrooms in the airport, and all stated
that the use of a public restroom was a last resort.
Further, complainant notes that testimony shows that the sex of the
escorting officer does not effect the ability to medicate a detainee.
Complainant notes that medics accompany any escort of a detainee who
requires medication during the trip, and also on specific details where,
because of the violent nature of the detainee, the detainee may need to be
sedated due to safety concerns. Complainant notes that she testified to
several instances where she escorted a detainee that needed medication
or sedation, and in one instance she and a female medic successfully
sedated a male detainee on the airplane without the assistance of the
male escorting officer, who was in the bathroom at the time.
With regard to the privacy concerns of the detainee raised by the agency,
complainant claims that there is no policy that the same-sex escort
must accompany the detainee to the bathroom or to undress. Further,
complainant notes that the agency does not require a same-sex escort for
hospital or other medical details. Specifically, complainant testified
that while at a hospital with a detainee, the officer must remain with
the detainee throughout the duration of that detainee's treatment,
no matter how invasive or personal the treatment or procedure is.
Moreover, complainant argues that same-sex escorts is not a BFOQ, even if
overnight stays and foreign travel are required of the escorting officers.
Complainant noted that the agency failed to demonstrate any meaningful
difference between male and female officers in their abilities to safely
escort details involving detainees of either sex. With regard to the
need of the detainee to use the restroom, complainant pointed out that
the testimony presented showed that officers had the options of seeking
assistance of the local authorities in finding a secure restroom or
a holding cell with facilities. Further, complainant noted that DO X
admitted that if he were rushed in the airport and did not have time
to find a secure restroom, the detainee would have to wait to use the
restroom on the plane.
With regard to overnight stays with a detainee, complainant noted that
DO X testified that on three occasions he was delayed overnight in a
foreign country with a detainee. On one occasion DO X and complainant
were delayed overnight in the airport with a male detainee and DO X
testified he and complainant stayed overnight at the airport, an open-air
facility, and both watched the detainee. Complainant noted that in a
second incident DO X testified that the detainee stayed overnight in a
holding cell. Complainant noted that in a third incident, DO X testified
that the officers and detainees stayed in a hotel and the officers took
turns watching the detainees. Complainant stated that in each of the
three incidents described, sex of the officers was not an issue.
Complainant does not challenge the relief awarded in the AJ's decision.
ANALYSIS AND FINDINGS
The Commission notes that in this case the testimony of one witness,
the Contracting Medical Officer for Federal Occupational Health,
at this hearing was held by telephone, without the objection of the
parties.3 The Commission has held that testimony may not be taken by
telephone in the absence of exigent circumstances, unless at the joint
request of the parties and provided specified conditions have been met.
See Louthen v. United States Postal Service, EEOC Appeal No. 01A44521
(May 17, 2006).4 However, since the facts of this case pre-date Louthen,
we will assess the propriety of conducting the hearing telephonically
by considering the totality of the circumstances. Here, it is unclear
whether exigent circumstances existed. On the other hand, it is
clear that there were no issues of witness credibility that might have
been impacted by the taking of testimony telephonically. Under these
circumstances, even if it is assumed that the AJ abused her discretion
in this case by taking testimony telephonically, the Commission finds
that her action constituted harmless error.
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In the present case, we find the agency's policy is facially
discriminatory because it classifies on the basis of sex by requiring
sex to be used as the determinant factor in designating DEOs to their
commercial airline escort assignments. Section 703(e) of Title VII only
permits classification based on sex "where . . . sex . . . is a bona fide
occupational qualification reasonably necessary to the normal operation
of that particular business or enterprise." 42 U.S.C. � 2000e-2(e)(1).
As such, the only issue to decide is whether the agency's policy falls
into the BFOQ defense. See Gray, Ridgeway, and Johnson v. Department
of Veterans Affairs, EEOC Appeals Nos. 07A20050093, 0720050092, and
0720050091 (Feb. 9, 2007). We find that complainant is harmed by this
facially discriminatory policy. See Booker v. Department of Homeland
Security, EEOC Appeal No. 07A30076 (July 13, 2005).
The Commission recently held, "[i]t is universally recognized that this
exception to Title VII was 'meant to be an extremely narrow exception
to the general prohibition of discrimination.'" Gray, EEOC Appeal
No. 07A20050093 (citing International Union, United Auto., Aerospace &
Agric. Implement Workers UAW v. Johnson Controls, Inc., 499 U.S. 187, 201
(1991); Dothard v. Rawlinson, 433 U.S. 321, 334, 97 S.Ct. 2720, 2729,
55 L.Ed.2d 786 (1977); see also Pime v. Loyola Univ., 803 F.2d 351,
356 (7th Cir.1986) (Posner, J., concurring)). The employer bears the
burden of establishing the BFOQ defense. Id. (citing Johnson Controls,
499 U.S. at 200, 111 S.Ct. at 1204; Healey v. Southwood Psychiatric
Hospital, 78 F.3d 128, 132 (3rd Cir. 1996)).
A review of the record reveals that the essence of the Florence Facility
as it relates to detainees has not changed since the issuance of our
previous decision and as stated in our previous decision we find the
"'essence' of the Florence Processing Center is to detain, process and
assist in deporting aliens." Pratt v. Department of Justice, EEOC Appeal
No. 01972502.
The agency argues that the same sex escorting policy must be following
to ensure the safety of the officer, the safety of the traveling public,
the safety of the airline crew, and the safety of the alien. The Supreme
Court has stated that "the safety exception is limited to instances in
which sex . . . actually interferes with the employee's ability to perform
the job." International Union, 499 U.S. at 204. In the present case,
complainant testified that as a DEO she has undergone basic enforcement
training in which she was instructed in the use of force, such as
handcuffs, restraining, holds, takedowns, and had weapon training.
The record reveals that training was not segregated between males and
females. Complainant testified regarding an occasion where a female DEO
and a female PHS member restrained and medicated an unruly male detainee
without the assistance of a male officer. Complainant also testified
regarding an occasion where she had to restrain a male detainee without
assistance from a male officer. Additionally, complainant described
an incident where a male detainee got away from a subordinate male
officer and explained that once the detainee was secured she conducted
the pat down search of the detainee. The record does not show that
female escorts are not as equally qualified as male escorts to control,
restrain, and transport a detainee regardless of sex of the detainee.
Although inquiry into whether sex constitutes a BFOQ usually focuses
on key job skills or the employer's central mission, courts also have
found an employee's sex to be a BFOQ in certain other situations, such
as where a client's privacy interests are implicated. Gray, EEOC Appeal
No. 07A20050093 (citing Jennings v. New York State Office of Mental
Health, 786 F.Supp. 376, 387 (S.D.N.Y.) (privacy-based BFOQ exists for
position of treatment assistant at state hospital for the mentally ill, a
position involving intimate personal care such as bathing and toileting),
aff'd, 977 F.2d 731 (2nd Cir. 1992) (per curium); Fesel v. Masonic Home
of Del., 447 F.Supp. 1346, 1351 (D.Del.1978) (privacy-based BFOQ exists
for position of nurse at small retirement home, a position involving
dressing and bathing elderly nursing home patients), aff'd w'out opinion,
591 F.2d 1334 (3rd Cir. 1979)).
Under the law, an employer asserting a privacy based BFOQ defense must
satisfy a three-part test. See id. (citation omitted). First, the
employer must assert a factual basis for believing that hiring any members
of one sex would undermine the privacy interests of patients, clients, or
inmates, in order to protect the privacy interests of the latter. See id.
Second, they must show that the asserted privacy interest is entitled
to protection under the law, and finally, they must demonstrate that no
reasonable alternative exists to protect those interests other than the
sex-based hiring policy. See id.5
In the present case, the primary essence of the function at issue is
to transport aliens back to their native country in a safe and humane
manner. Compare Mirzayans v. Department of Homeland Security, EEOC Appeal
No. 0120040649 (January 23, 2007) (BFOQ exists where performing personal
searches was core responsibility for custom inspectors whose principal
duty was to screen passengers for undeclared merchandise and contraband).
The record is clear that both men and women are physically capable of
performing the job tasks central to the agency's mission. Since privacy
is the basis of the agency's BFOQ defense, we must examine whether the
performance of those central tasks intrudes upon the privacy rights of
opposite-sex third parties. Olsen at 1061. The record reveals that in
the course of transporting aliens from the Florence Facility to their
originating country, the DEOs are on occasion required to remain with
the detainee at all times and as a result have had to escort aliens to
the restroom, have had to conduct pat down searches of aliens, and have
had to medicate unruly aliens. The 9th Circuit Court of appeals has
held that a detainee's privacy right in not being viewed unclothed by
a member of the opposite sex survives incarceration. Robino v. Iranon,
145 F.3d 1109, 1111 (9th Cir. 1998) (sex constituted BFOQ for corrections
officer position in all female prison where job required officer to
view inmate showering and toileting). Assuming (without deciding)
that the instant detainees have a right to privacy, we find that the
agency has failed to meet its burden of establishing that there are no
other less discriminatory alternatives available to avoid detainees'
privacy concerns during commercial aircraft assignments, and thus,
we determine the agency's BFOQ defense fails.
In this case the agency expresses concerns over the privacy implications
of allowing DEOs to escort detainees of the opposite sex where officers
need to take detainees to the bathroom, medicate unruly detainees,
must stay overnight with the detainee, or need to search the detainee.
The record is clear that DEOs are required to remain with the detainee
at all times unless the detainee is otherwise secured and as a result
officers must escort detainees to the restroom. We note, as did the AJ,
that there is no requirement that the escort watch the detainee use the
restroom, just that the escort is in presence of the detainee and that
safety is maintained. Compare Gray, EEOC Appeal No. 0720050093 (Sex was
a BFOQ of the urine screening collection function for Health Technicians
who were required to personally observe the urine specimen entering
the specimen container and thereby view the clients' naked bodies.
Sex was a BFOQ in order to ensure privacy rights of clients and to ensure
validity of the testing for which there was a therapeutic purpose.).
The record reveals that officers of both sexes testified that an escort
first looks for a secure area for the detainee to utilize the restroom.
The record reveals that a holding cell, if available at an airport, has
been utilized. Additionally, officers testified that employee restrooms
at airports have been utilized by detainees. Officers testified that the
holding cell and single employee restrooms were sought first because it
was easier for an officer to make a sweep of such restrooms. Moreover,
the restroom on the plane is an option that has been used by detainees.
Specifically, we note that DO X testified on the two occasions that he
and another male officer escorted female detainees, the female detainees
did not use the restroom until they were on the plane. The record shows
that when a detainee uses a restroom on a plane, the officer escorts the
detainee to the restroom and waits outside the door for the detainee and
then returns the detainee to his or her seat. The record is clear that
the use of a public restroom in the airport is a last resort for officers.
However, officers testified that they have received assistance from
local authorities at the airport with transporting detainees. Thus, the
record shows that reasonable alternatives existed to protect detainees'
privacy interests.
Further, we note the agency also argues that overnight stays implicate
privacy concerns for the detainee. These include instances where
flights are delayed, cancelled, or missed and the officers are granted
permission to stay overnight with a detainee. The testimony reveals that
overnight stays are rare. The record reveals that DO X, a deportation
officer since 1987, testified that he only recalled one incident where
he stayed overnight in a hotel with a detainee. That situation involved
three male officers and one female officer escorting two male detainees.
DO X explained that as a result of a missed flight, and the unavailability
of a holding cell or jail in the foreign country, the officers and the
detainees stayed in a hotel. DO X explained the three male escorts
took shifts with the male detainees and the female officer did not stay
overnight. However, DO X stated that the female escort was capable of
watching the detainees, but was not needed because the other officers
volunteered. Further, we note the record contains testimony that as a
result of a missed flight, DO X recalled two occasions where he stayed
up all night with detainees. In one of the situations, complainant
stayed up all night with DO X inside an airport. DO X testified he
had no concerns regarding complainant's ability to handle the male
detainee without him being present. The record reveals that on the
rare occasions when an overnight stay is needed, officers will seek a
holding cell or jail/detention facility for the detainee, may stay at
the airport all night with the detainee, and as a last resort stay at
a hotel with a detainee. We find that the AJ properly determined that
there was no evidence presented by the agency that watching detainees
overnight would involve any privacy or safety concerns aside from those
presented with bathroom scenarios.
The agency also claims that the search of a detainee may be necessary
and argues privacy concerns would be raised. We note the AJ properly
recognized that detainees are required to go through a "dress down"
procedure when they are departing the facility which includes a
search of the detainee's private belongings before they are permitted
to change from their facility clothing into their private clothing.
Although officers testified that they have had occasion to conduct a
pat down search of detainees after leaving the facility, the record does
not indicate this is the typical situation and we find telling the fact
that no officer testifying at the hearing ever conducted a strip search
of a detainee after they left the Florence Facility.6 We note there
is no policy stating that pat down searches are restricted based on
sex. In fact, testimony revealed that male and female officers received
the same training. Moreover, if a more invasive search was needed to
be done of a detainee of the opposite sex, there is no evidence that
local airport authorities could not be used to assist. Upon review,
we find the agency did not meet its burden of showing that the sex based
assignment was necessary to protect the privacy interests of detainees.
Additionally, the agency alleges that there are cultural concerns
surrounding the escort of a detainee by a member of the opposite sex.
For example, the agency stated that in Muslim countries, two males
escorting a female or vice versa would be contrary to cultural standards
of the country. We note that the record discloses that escorts are
not required to accompany the detainee in foreign countries outside the
airport, except as describe above where an overnight stay is required,
en route to the detainee's originating country. Rather, the record
reveals that once an officer delivers the detainee to the appropriate
authorities in the designated country, their contact with the detainee
ends. The Commission rejects cultural sensitivity as a justification
for same-sex DEO assignments. See Pratt, EEOC Appeal No. 01972502
(cultural preference of male detainee for escort by a male detention
enforcement officer "is akin to `customer preference' which is not a
BFOQ") (citing 29 C.F.R. � 1604.2(a)).
Finally, the agency states that the National Standards protect officers
against false allegations of misconduct. First, we note that there is no
evidence that using officers of the same sex as a detainee would result
in less accusations of misconduct. We note that officers regardless of
whether they are the same sex as the detainee are capable of committing
acts of abuse against a detainee. Additionally, we note that the
presence of two officers, regardless of sex, serves as a protection
against false allegations of misconduct from a detainee. The Commission
finds the agency has failed to meet its burden of establishing that a
policy of same-sex assignment for DEOs was justified.7 Booker, EEOC
Appeal No. 07A30076 (No BFOQ exists for assignment of female immigration
enforcement officer to escort female detainees, noting "preference"
for female escorts stemmed from concern to prevent male officers from
being accused of misconduct was insufficient justification for agency
to satisfy burden of sex-based assignment).
Therefore, after a careful review of the record, we discern no basis
to disturb the AJ's finding of discrimination. The AJ's findings of
fact are supported by substantial evidence of record. Additionally,
we note the agency does not challenge the amount of non-pecuniary,
compensatory damages or attorney's fees awarded by the AJ. Further,
we find no reason to modify the amount of non-pecuniary, compensatory
damages or attorney's fees awarded in the AJ's decision.
Accordingly, the agency's final order is REVERSED and the agency is
directed to comply with the Commission's Order as specified 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.
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 (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
February 23, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 We note that although the instant complaint, like the complaint in
EEOC Appeal No. 01972502, was filed against the Department of Justice,
the relevant portion of the Department of Justice, effective March 1,
2003, according to Department of Homeland Security, came under the
jurisdiction of the Department of Homeland Security.
3 The mere lack of an objection is not dispositive, however. See Louthen
v. United States Postal Serv., EEOC Appeal No. 01A44521 (May 17, 2006).
4 "In Louthen, the Commission has promulgated its policy regarding the
taking of telephonic testimony in the future by setting forth explicit
standards and obligations on its Administrative Judges and the parties.
Louthen requires either a finding of exigent circumstances or a joint
and voluntary request by the parties with their informed consent. When
assessing prior instances of telephonic testimony, the Commission will
determine whether an abuse of discretion has occurred by considering
the totality of the circumstances. In particular, the Commission will
consider factors such as whether there were exigent circumstances,
whether a party objected to the taking of telephonic testimony, whether
the credibility of any witnesses testifying telephonically is at issue,
and the importance of the testimony given telephonically. Further, where
telephonic testimony was improperly taken, the Commission will scrutinize
the evidence of record to determine whether the error was harmless,
as is found in this case." Sotomayor v. Department of the Army, EEOC
Appeal No. 01A43440 (May 17, 2006).
5 This case does not involve a discriminatory hiring decision because
of a BFOQ of a position, rather, it limits certain job assignments or
functions to one sex. The Commission has had the occasion to examine
the BFOQ defense in cases alleging facially discriminatory assignments
involving security personnel, such as law enforcement officers. See Gray,
EEOC Appeal No. 0720050093 (citing Pratt v. Department of Justice, EEOC
Appeal No. 01972502 (no BFOQ established for detention escorts where there
was no evidence of unreasonable safety concerns); Perry v. Department of
Homeland Security, EEOC Appeal No. 01A31055 (September 29, 2005)(genuine
dispute of material fact existed as to whether sex was a BFOQ to an all
female immigration facility)).
6 Although we recognize a strip search of a detainee might be needed in
some instances and that agency policy requires a strip search be conducted
by an officer of the same sex as the detainee, we note that complainant
did not challenge the agency's policy regarding strip searches. Thus,
we do not address whether sex would be a BFOQ in order to conduct a
strip search.
7 The Commission recognizes that particular instances may arise where
a requirement for a same-sex assignment for a DEO could possibly be
appropriate. As a general policy, however, the agency has failed to
justify that sex is a BFOQ in the instant matter.
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0720050059
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0720050059