Gabriela Pantoja v. Department of Justice 07A10025 August 14, 2001 . Gabriela Pantoja, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Bureau of Prisons), Agency. Appeal No. 07A10025 Agency No. P-97-8267 Hearing No. 330-99-8248X DECISION In conjunction with its November 6, 2000 final action, the agency filed an appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405. On appeal, the agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) Decision which found that the agency discriminated against complainant on the basis of her sex (female) in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. when it terminated her on August 28, 1997. For the following reasons, the Commission reinstates the AJ's decision. The record reveals that complainant, a Probationary Corrections Officer at the Federal Corrections Complex in Beaumont, Texas, filed a formal EEO complaint with the agency on October 1, 1997, alleging that the agency discriminated against her on the bases of her National Origin (Hispanic), sex (female), and/or reprisal (Title VII activity) when: in August 1997, a superior officer initiated a biased, deceptive and misleading investigation; (2) on August 8, 1997, she was assigned a different post to work; (3) on August 15, 1997, she received an unsatisfactory on her performance appraisal; and (4) on August 28, 1997, she was terminated. Following a hearing, the AJ issued a decision finding that complainant established sex discrimination when she was terminated after receiving an “unsatisfactory” on her performance appraisal. The AJ concluded that complainant failed to establish discrimination on any other basis. On appeal, the agency requests that we reverse the AJ's finding of sex discrimination. 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). In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, complainant must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, then the complainant must prove, by a preponderance of the evidence, that the legitimate reason proffered by the agency was a pretext for discrimination. Id. at 256. The substantial evidence in the record supports the following factual findings. On August 14, 1997, complainant heard an inmate threaten to “get” another prison employee (counselor). Complainant failed to write an incident report and failed to inform her supervisor, the Operations Lieutenant, as provided by the agency's regulations. In response to complainant's failure to report the comment, the Operations Lieutenant issued her a negative performance appraisal and, with the concurrence of the associate warden, terminated her employment. While admitting her failure to report the comment, complainant asserts that the harsh punishment she received was the result of sex discrimination. The agency argues that complainant's fear of the inmate made her too scared to report the comment up the chain of command. According to the agency, complainant's demonstrated fear of inmate retaliation disqualified her from the corrections officer position. Complainant responded that she was not scared of inmate retaliation and that she failed to properly report the comment because of her inexperience, and because she did not feel that the inmate's threat was creditable. In reaching the conclusion that complainant was discriminated against on the basis of her sex, the AJ cited the agency's failure to support its claim that complainant feared inmate retaliation. The AJ also concluded that the agency issued less severe discipline to two male probationary correctional officers accused of similar violations. Finally, the AJ took note of the agency's tolerance of comments and behavior of a sexual nature on the part of agency staff and inmates. The pivotal issue in this case is whether the agency legitimately believed that complainant feared inmate retaliation when she failed to report the comment up the chain of command. We find substantial support in the record for the AJ's conclusion that the agency used gender-based stereotypes as its basis for concluding that the complainant feared the inmate. On appeal, the agency relies on the testimony of agency officials who believe that complainant was scared of the offending inmate. However, the AJ, who had the opportunity to observe the witnesses, was not persuaded that such officials in fact had a reasonable belief that complainant's failure to report the incident was due to her fear of the inmate. Consequently, the Commission declines to disturb the AJ's finding of discrimination. CONCLUSION The Commission reinstates the AJ's finding of sex discrimination. We therefore order the following remedial action.<1> ORDER (D0900) The agency is ordered to take the following remedial action, to the extent it has not already done so: Reinstate the complainant to her position as a Correctional Officer, GS-7, effective August 27, 1997. The agency shall determine the appropriate amount of back pay (with interest, if applicable) and other 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. The 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 the complainant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The 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." pay reasonable attorney's fees in the amount of $14,228.75. pay $7,500.00 in compensatory damages. The agency shall provide training for the management of Federal Corrections Complex in Beaumont, Texas, as to their responsibilities and obligations under the Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., particularly with respect to an employer's obligation to provide a workplace free of sex discrimination. The agency shall complete this action within sixty (60) days of the date that the agency receives this decision. 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 of the agency's calculation of backpay and other benefits due complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0900) The agency is ordered to post at its Federal Corrections Complex in Beaumont, Texas 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. INTERIM RELIEF (F0900) When the agency requests reconsideration and the case involves a finding of discrimination regarding a removal, separation, or suspension continuing beyond the date of the request for reconsideration, and when the decision orders retroactive restoration, the agency shall comply with the decision to the extent of the temporary or conditional restoration of the complainant to duty status in the position specified by the Commission, pending the outcome of the agency request for reconsideration. See 29 C.F.R. § 1614.502(b). The agency shall notify the Commission and the complainant in writing at the same time it requests reconsideration that the relief it provides is temporary or conditional and, if applicable, that it will delay the payment of any amounts owed but will pay interest from the date of the original appellate decision until payment is made. Failure of the agency to provide notification will result in the dismissal of the agency's request. See 29 C.F.R. § 1614.502(b)(3). 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 August 14, 2001 NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the United States Government Notice is posted pursuant to an Order by the United States Equal Employment Opportunity Commission dated ___________ which found that a violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. has occurred at this facility. Federal law requires that there be no discrimination against any employee or applicant for employment because of that person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions, or privileges of employment. The Federal Corrections Complex in Beaumont, Texas, (hereinafter referred to as the “facility” supports and will comply with such Federal law and will not take action against individuals because they have exercised their rights under law. The facility has been found to have discriminated against an employee because of her sex. The facility has been ordered to ensure that officials responsible for personnel decisions and terms and conditions of employment will abide by the requirements of all Federal equal employment laws. The facility has been ordered to provide compensatory damages, attorney's fees, training, and post this notice. The facility will not in any manner 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 pursuant to, Federal equal employment opportunity law. _________________________ Date Posted: ____________________ Posting Expires: _________________ 29 C.F.R. Part 1614 1 On appeal, the agency urged our acceptance of the remedial relief ordered by the AJ in the event that we concurred with the finding of discrimination. Complainant does not challenge the AJ's order of relief.