Reina E. Killfoil, Complainant,v.Janet Reno, Attorney General, Department of Justice, (Immigration and Naturalization Service), Agency.

Equal Employment Opportunity CommissionJul 19, 2000
01973197 (E.E.O.C. Jul. 19, 2000)

01973197

07-19-2000

Reina E. Killfoil, Complainant, v. Janet Reno, Attorney General, Department of Justice, (Immigration and Naturalization Service), Agency.


Reina E. Killfoil v. Department of Justice

01973197

July 19, 2000

Reina E. Killfoil, )

Complainant, )

)

v. ) Appeal No. 01973197

) Agency No. I-91-5895

Janet Reno, ) Hearing No. 340-95-3699X

Attorney General, )

Department of Justice, )

(Immigration and Naturalization )

Service), )

Agency. )

___________________________________)

DECISION

On March 6, 1997, Reina E. Killfoil, (hereinafter referred to as the

complainant) filed a timely appeal with the Equal Employment Opportunity

Commission (Commission) from the final decision of the Department of

Justice, Immigration and Naturalization Service (hereinafter referred

to as the agency) concerning her allegation that the agency violated

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e

et seq.<1> In her complaint, complainant alleged that the agency

discriminated against her on the basis of her sex (female) and national

origin (El Salvadoran) when the agency subjected her to a hostile

environment: (1) in its Los Angeles District Office (District Office), and

(2) at the Immigration Officers Basic Training Course in Glynco, Georgia

(Training Facility), where complainant was being trained as an agency

Immigration Examiner. This appeal is accepted in accordance with 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

During the period in question, complainant was employed by the agency

in the position of Immigration Examiner Trainee as a GS-9. To retain

the Immigration Examiner position, complainant was required to attend

and complete training at the Training Facility.

Complainant filed a formal complaint of discrimination on January 31,

1991, in which she alleged: (1) On January 19, 1990, she was dismissed

from her position of Immigration Examiner based upon her ethnic origin;

(2) she was subjected to comments by classmates about her ethnicity;

(3) the agency applied different standards to her, and (4) she was

improperly terminated by the District Office even though she was not a

probationary employee.<2> Following the investigation of the complaint,

complainant requested an EEOC administrative hearing, which was held

before an administrative judge (AJ) in October 1996.

On November 27, 1996, following a hearing at which eighteen witnesses

testified, the AJ recommended a finding of discrimination at the Training

Facility with respect to allegations #1, #2, and #3, and a finding of

no discrimination at the District Office with respect to allegation #4.

Regarding the finding of discrimination, the AJ found credible testimony

that complainant was subjected to hostile environment harassment based

on her sex (female) and national origin (El Salvadoran).

With regard to the discriminatory acts the AJ found that both the

Training Facility and complainant's classmates contributed to the

hostile environment. The AJ found that complainant was ridiculed and

demeaned based on her distinct El Salvadoran accent. Complainant was

also belittled for deferring to a man for class President. The AJ

further determined that complainant was written up for violating the

dress code, however no one else was written up for the same violation.

Nevertheless, the Training Facility only blamed complainant for the need

to re-take the class picture.

The AJ further determined that complainant was subjected to the

discrimination when she was accused of cheating on a Spanish exam,

and when her instructors and classmates continued to request that she

be dismissed from the Training Facility, after it had been determined

she had not cheated on the exam.

In addition, the AJ found that complainant had passed the final

Immigration Law exam, with a score of 66, as opposed to the reported

score of 62. As a result she passed the Immigration Law course; and would

have graduated from the Training Facility but for the discrimination.

The AJ invoked the adverse inference rule and found that the agency

acted in bad faith when the agency destroyed complainant's class records,

including her final Immigration Law exam, answers, score and revisions,

in violation of its own standards: (1) after the agency was on notice

of the instant complaint, and (2) after the records had been seen by

agency officials, but before they had been seen by the EEO investigator.

With regard to the remedy, the AJ determined that complainant should be

awarded: (1) the certificate of completion from the Training Facility,

and (2) back pay and benefits. On February 7, 1997, the agency issued its

final decision (FAD) adopting the AJ's finding of no discrimination, and

rejecting the AJ's finding of discrimination. It is from this decision

that complainant now appeals<3>.

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an

administrative judge will be upheld if supported by substantial evidence

in the record. Substantial evidence is defined as "such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion."

Universal Cameral Corp. v. National Labor Relations Board, 340 U.S. 474,

477 (1951) (citation omitted). A finding regarding whether or not

discriminatory intent existed is a factual finding. See Pullman-Standard

Co. v. Swint, 456 U.S. 273, 293 (1982).

After a careful review of the record in its entirety, including statements

submitted on appeal, the EEOC hearing transcripts, the AJ's recommended

decision, the FAD, and arguments and evidence not specifically addressed

in this decision, the Commission finds that the AJ's recommended decision

is supported by substantial evidence. Nothing proffered from the agency

in its final decision differs significantly from the arguments presented

at the hearing and given full consideration by the AJ. Therefore, the

Commission discerns no basis upon which to overturn the AJ's finding of

discrimination in this matter.

In affirming the finding of discrimination by the AJ, the Commission notes

that the credibility determinations of the AJ are entitled to deference

due to the AJ's first-hand knowledge, through personal observations,

of the demeanor and conduct of the witnesses at the hearing. Esquer

v. United States Postal Service, EEOC Request No. 05960096 (September 6,

1996); Willis v. Department of the Treasury, EEOC Request No. 05900589

(July 26, 1990). While the agency argues that the AJ's credibility

findings are not supported by the record, the Commission, after an

independent review, found no significant evidence to contradict the AJ's

findings.

Regarding complainant's remedy, the Commission finds that complainant is

entitled to full, make-whole relief. See Holly v. United States Postal

Service, EEOC Appeal No. 01950220 (August 21, 1997) citing, Franks

v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle Paper

Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. United States

Postal Service, EEOC Appeal No. 01933395 (July 21, 1994). However

complainant's back pay shall be offset by the amount of wage-replacement

benefits she received under FECA, and any wages earned. See Holly, supra,

citing Davis v. United States Postal Service, EEOC Petition No. 04900010;

see also Finlay v. United States Postal Service, EEOC Appeal No. 01942985

(April 29, 1997) citing Wallis v. United States Postal Service, EEOC

Appeal No. 01950510 (November 13, 1995); Scott v. United States Postal

Service, EEOC Appeal No. 01921641 (June 11, 1993). The Commission also

finds that complainant is entitled to compensatory damages. Although

complainant did not mention �compensatory damages� in her complaint, or on

appeal, the Commission interprets the following language in complainant's

contentions on appeal as a request for compensatory damages:

Although the amounts received from [complainant's Federal Employee

Workers' Compensation (FECA) claim] could be offset from her backpay,

she is entitled to all relief authorized under Title VII, including back

pay, front pay, pre- and post judgement interest, the value of accrued

benefits, injunctive relief, and attorneys fees and costs.

See Robertson v. United States Postal Service, EEOC Request No. 05980323

(October 1, 1998) (Statement in complaint that complainant wanted to be

reinstated and receive all lost pay, including any and all other relief

available is a request for compensatory damages).

Accordingly, it is the decision of the Equal Employment Opportunity

Commission to REVERSE the agency's final decision with regard to

allegations #1, #2, and #3, and find that complainant was discriminated

against based on her national origin and sex when she was subjected to

a hostile work environment. The Commission AFFIRMS the FAD with respect

to allegation #4, and finds no discrimination, and REMANDS the FAD with

respect to compensatory damages. In order to remedy complainant for

its discriminatory actions, the agency shall comply with the following

ORDER:

ORDER

The agency is ORDERED to take the following remedial action:

The agency shall take reasonable steps tailored to cure or correct

the particular source of the identified discrimination and to minimize

the chance of its recurrence, including but not limited to providing

EEO sensitivity training to all personnel at the Training Facility to

ensure that neither complainant nor any other employee is subjected to

discrimination in the future.

Within fifteen (15) days from the date this decision becomes final, the

agency shall immediately award complainant the certificate of completion

from the Training Facility.

Fifteen (15) days from the date this decision becomes final, the agency

shall immediately offer complainant reinstatement/promotion to the

Immigration Examiner position and grade level she would have attained

through career ladder promotions, had she not been dismissed by the

Training Facility based upon discrimination. Complainant shall be given

a minimum of fifteen days from receipt of the offer within which to accept

or decline the offer. Failure to accept the offer within the time period

set by the agency will be considered a rejection of the offer, unless

complainant can show that circumstances beyond her control prevented a

response within the time limit. Such reinstatement/promotion shall be

retroactive to the date of her dismissal from the Training Facility,

January 19, 1990.

The agency shall provide complainant with full back pay, retroactive to

January 19, 1990, with interest, including retroactive seniority and

appropriate benefits, at the grade level(s) to which complainant would

have been entitled if she had graduated from the Training Facility

and become an Immigration Examiner, less interim earnings, if any, and

offset by the amount of any wage-replacement benefits received under

FECA. The agency shall determine the appropriate amount of back pay and

benefits due complainant, pursuant to 29 C.F.R. �1614.501, no later than

sixty (60) calendar days after the date this decision becomes final.

Complainant shall cooperate in the agency's efforts to compute the

amount of back pay and benefits due, and shall provide all relevant

information requested by the agency. If there is a dispute regarding

the exact amount of back pay and/or benefits, the agency shall issue a

check to complainant for the undisputed amount within sixty (60) calendar

days of the date the agency determines the amount it believes to be due.

Complainant may petition for enforcement or clarification of the amount

in dispute. The petition for clarification or enforcement must be filed

with the Compliance Officer, at the address referenced in the statement

entitled �Implementation of the Commission's Decision.�

The issues of compensatory damages and attorney's fees and costs are

REMANDED to the Hearings Unit of the Los Angeles District Office.

Thereafter, the Administrative Judge shall issue a decision on these

issues in accordance with 64 Fed. Reg. 37,644, 37,657 (1999) (to be

codified at 29 C.F.R. � 1614.109), and the agency shall issue a final

action in accordance with 64 Fed. Reg. 37,644, 37,657-58 (1999) (to be

codified at 29 C.F.R. � 1614.110) within forty (40) days of receipt of

the Administrative Judge's decision. The agency shall submit copies of

the Administrative Judge's decision and the final agency action to the

Compliance Officer at the address set forth below.

The agency shall post a notice as directed below.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled, "Implementation of the Commission's

Decision." The report shall include evidence that the corrective action

has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at the Training Facility copies of the

attached notice. Copies of the notice, after being signed by the

agency's duly authorized representative, shall be posted by the agency

within thirty (30) calendar days of the date this decision becomes final,

and shall remain posted for sixty (60) consecutive days, in conspicuous

places, including all places where notices to employees are customarily

posted. The agency shall take reasonable steps to ensure that said

notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to the

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant also has the right to file a

civil action to enforce compliance with the Commission's order prior

to or following an administrative petition for enforcement. See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407

and 1614.408. A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. �

2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF

RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

All requests and arguments must be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.604). The request or opposition must

also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN

THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT

HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

July 19, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999) where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2The record indicates that this issue relates to the actions taken

by the agency's District Office after complainant returned from the

Glynco facility. Apparently, as a result of complainant's failure to

successfully complete the Glynco program, the agency initially proposed

her termination, but later rescinded the action since it would only be

appropriate if complainant had been a probationary employee. Subsequently,

the agency offered complainant a GS-963-5 clerical position before

restoring her to her former position at a lower, GS-7 level.

3In her statement on appeal, complainant does not challenge the agency's

final decision adopting the AJ's finding of no discrimination at the

District Office.