0120083445
08-20-2009
Sukeena Stephens, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Sukeena Stephens,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120083445
Hearing No. 160-2005-00053X
Agency No. TSAF-03-2639
DECISION
On July 30, 2008, complainant filed an appeal from the agency's June 24,
2008 final decision concerning her equal employment opportunity (EEO)
complaint 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 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 the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a Federal Air Marshall at the agency's New York Field Office. In a
formal EEO complaint dated December 9, 2003, complaint alleged that she
was discriminated against on the bases of race (African-American), sex
(female) and disability (uterine tumors) when, since Summer 2002, the
agency denied her requests to transfer to its Washington Field Office.
After more than 180 days passed following the filing of her formal
complaint, on July 22, 2004, complainant requested a hearing before an
EEOC Administrative Judge (AJ). At the hearing stage, in a decision dated
October 3, 2006, the AJ noted that the agency took 764 days from when
complainant filed her formal complaint to complete its investigation,
and found that such delay ultimately disadvantaged complainant in a
determination as to discrimination and the agency was on notice that
sanctions could apply. The AJ stated, hence, he found it appropriate
to impose the sanction of a decision fully in favor of complainant
as to race and age, but not disability, when the agency denied her
request to transfer from the agency's New York Field Office to its
Washington Field Office. The AJ found that complainant established an
inference of discrimination based on race and sex sufficient to support a
default judgment in her favor. As relief, the AJ ordered the agency to
reassign complainant to the Washington Field Office, award compensatory
damages, attorney's fees and costs, and post a notice of a finding
of discrimination. With regard to compensatory damages and attorney's
fees, the AJ instructed complainant to provide evidence supporting such
an award to him and the agency within thirty calendar days from receipt
of his decision. The AJ stated that failure to do so "shall be deemed
a waiver of attorney's fees, costs and compensatory damages."
In a decision dated January 18, 2008, the AJ found that complainant
"effectively waived her compensatory damages and attorney's fees/costs
in th[e instant] complaint." The AJ stated that the complainant remains
entitled to reassignment to the agency's Washington Field Office and the
posting of a notice of discrimination. On June 24, 2008, the agency
issued a final decision implementing the AJ's decision. The instant
appeal from complainant followed.
On appeal, complainant stated that the AJ abused his discretion by
informing her legal representative that he would set up mediation on the
matter and failing to do so. Complainant stated that, between November
2006 and July 2007, she was in consistent contact with the AJ and agency
regarding mediation of the matter through a peer of the assigned EEOC AJ
and that, on July 30, 2007, she timely filed a response to the agency's
motion to dismiss. Complainant stated that the AJ's assertion that she
did not respond to the agency's motion and sought to abandon her claim
is incorrect. On appeal, complainant stated that the AJ did not give her
appropriate notice of such a severe action and, if he had, she would have
submitted her request for remedy. In opposition to complainant's appeal,
the agency stated that, after numerous extensions, complainant failed to
follow the AJ's order of submitting evidence in support of compensatory
damages and attorney's fees. The agency noted that complainant had
ample opportunity to submit her evidence as she was given an extension
date of March 2, 2007 and failed to respond to the agency's July 2007
motion to dismiss.
Here, the sole issue before the Commission is complainant's entitlement
to compensatory damages and attorney's fees and costs following an
agency-implemented AJ finding of discrimination based on race and sex.
To calculate appropriate relief, an AJ may require a complainant to
produce evidence demonstrating entitlement and may, in his/her discretion,
find a claim waived if a complainant fails to produce such evidence.
See EEOC Management Directive 110, Ch. 7, Sec. III.D.11-13, 7-12 &
7-13 (November 9, 1999). Such is the case here. The record reveals
that the AJ instructed complainant to, within 30 days of receipt of the
decision, submit evidence for calculating damages and attorney's fees.
Complainant sought mediation regarding such calculations, but more than
seven months after the AJ's interim decision, mediation still was not
scheduled or received. The record is unclear as to why complainant
continued to seek this option, rather than or in addition to submitting
her relief evidence, and the agency inquired about her evidence. We find
the AJ's finding of waiver of compensatory damages and attorney's fees
appropriate. Hence, we AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 20, 2009
__________________
Date
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0120083445
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083445