0420070029
08-18-2008
Blondell Peterson, Petitioner, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.
Blondell Peterson,
Petitioner,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Petition No. 0420070029
Appeal No. 0720040070
Agency No. NIEHS990020
DECISION ON A PETITION FOR ENFORCEMENT
On September 11, 2007, the Equal Employment Opportunity Commission
(EEOC or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in Blondell Peterson v. Department
of Health and Human Services, Appeal No. 0720040070 (March 18, 2005).
This petition for enforcement is accepted by the Commission pursuant to
29 C.F.R. � 1614.503. Petitioner alleged that the agency failed to fully
comply with the Commission's order to reinstate her to her position.
Petitioner filed a complaint in which she alleged that the agency
discriminated against her on the bases of race (African-American) and
reprisal for prior protected EEO activity in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. Petitioner appealed the agency's final decision to the
Commission, and in Appeal No. 0720040070, the Commission found that
complainant had been subjected to race discrimination.
The order also specified that the agency reinstate complainant to
the position of Writer/Editor, GS-9, Research Triangle Park, North
Carolina, or to a comparable position, subject to completion of a
probationary period with a mid-term evaluation within six (6) months of
her reinstatement date. The matter was assigned to a Compliance Officer
and docketed as Compliance No. 0620050058 on March 21, 2005.
On September 11, 2007, petitioner submitted the instant petition for
clarification/enforcement. Petitioner contends that the prior order
was not clear, in that the AJ's order finding discrimination specified
reinstatement subject to the satisfactory completion of a one-year
probationary period. (Emphasis added). Petitioner requested clarification
on this issue, as it implicates a subsequently filed EEO complaint.
On November 13, 2007, complainant submitted a declaration in support of
her petition. Therein, complainant maintained that the agency never
fully complied with the order because the position to which she was
reinstated was not comparable to her former position.
In accordance with 29 C.F.R. � 1614.503(c), the Commission may issue a
clarification of a prior decision. A clarification cannot change the
result of a prior decision or enlarge or diminish the relief ordered
but may further explain the meaning or intent of the prior decision. 29
C.F.R. � 1614.503(c). After a review of the record, we clarify our
prior decision to explain that the intent of the decision was to order
complainant's reinstatement into the Writer/Editor position subject to a
one-year probationary period, as the AJ found was appropriate. Notably,
the AJ in this decision found,
[i]t is evidence in review of this case that the complainant has some
areas of concern regarding her performance. However, it is equally
evident that she was never given an honest assessment of her performance
before the decision was made to terminate.
Complainant does not dispute that the agency reinstated her.1 However,
the agency was also required to reinstate complainant into a comparable
or substantially equivalent position. The Commission has consistently
held that a substantially equivalent position is one that is similar in
duties, responsibilities, and location (reasonable commuting distance)
of the position which petitioner originally applied for. See Spicer
v. Department of the Interior, Petition No. 04980007 (September 24,
1998); Patterson v. Department of Agriculture, EEOC Request No. 05940079
(October 21, 1994). We note that the burden is on the agency to establish
that the position offered to petitioner is in fact substantially
equivalent to the position lost. Rai v. Department of the Interior,
EEOC Appeal No. 01901186 (May 17, 1990). After a review of the record,
including complainant's position description, we find that the agency
complied with our order to place complainant into a comparable position.
Complainant's description of her current duties is certainly comparable
to the position description of the Writer/Editor position.
Accordingly, the Commission finds the agency has complied with the
Commission's decision in EEOC Appeal No. 0720040070.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0408)
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
8/18/08
Date
1 An SF-50 dated May 1, 2005, also indicates the reinstatement was
subject to completion of a one-year probationary period.
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0420070029
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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