01A21103
08-06-2003
Patricia A. Moody, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Patricia A. Moody v. Department of Justice
01A21103
08-06-03
.
Patricia A. Moody,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A21103
Agency No. P-20-0119
Hearing No. 110-A1-8096X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
The record reflects that on April 11, 2000, complainant filed an EEO
complaint against the agency, alleging that because of her disability
(foot condition), she was forced to work in a foot hazard area due
to her inability to wear steel-toed shoes, and that because of her
disability discrimination complaint, the agency downgraded her from
a GS-9 to a GS-8 position. After a hearing on August 22, 2001, the
Administrative Judge (AJ) dismissed complainant's disability claim and
found reprisal discrimination. Complainant now alleges that the agency
has failed to fully comply with the AJ's order reinstating her into a
GS-9 position, which is "substantially similar" to the Office Automation
Assistant position previously held by her just prior to her demotion by
the agency.<1>
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission that the agency has complied with the
AJ's order requiring complainant's reinstatement into a GS-9 position,
which is substantially similar to the Office Automation Assistant position
previously held by complainant just prior to her demotion. The record
is replete with position descriptions for both the Office Automation
Assistant position, previously held by complainant, and the current
position, Administrative Officer, held by complainant that she argues
is not equivalent or substantially similar. Both positions require,
in contrast to complainant's contentions, various administrative duties
encompassing much of the same functions. Further, complainant's most
recent performance appraisal, contained in the record, reflects again
that contrary to complainant's appeal contentions, complainant performed
a variety of duties and performed them well. In essence, the Commission
is not swayed by complainant's claims of agency noncompliance with the
AJ's final order in this matter.
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 (S0900)
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 (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
___08-06-03_______________
Date
1In her July 15, 2002 appeal statement, complainant makes no other claims
of agency noncompliance with the AJ's final order.