04990032
07-22-1999
) Request No. 05960575
Barbara Flynt v. Department of Housing and Urban Development
04990032
July 22, 1999
Barbara Flynt, )
Petitioner, )
)
v. ) Petition No. 04990032
) Request No. 05960575
Andrew M. Cuomo, ) Appeal No. 01943653
Secretary, ) Agency No. AT-91-07
Department of Housing ) Hearing No. 140-94-8055X
and Urban Development )
Agency. )
___________________________________)
DECISION ON A PETITION FOR ENFORCEMENT
On March 26, 1999, the Equal Employment Opportunity Commission, docketed
a petition for enforcement to examine the implementation of its order
in Barbara Flynt v. Andrew M. Cuomo, Secretary, Department of Housing
and Urban Development, EEOC Request No. 05960575 (April 2, 1998). This
petition for enforcement is accepted by the Commission pursuant to 29
C.F.R. �1614.503.
In Request No. 05960575, the Commission ordered the agency, inter alia,
to offer petitioner reinstatement to the position of secretary, GS-4, at
its facility in Greensboro, North Carolina, or a comparable position in
the Greensboro area, retroactive to July 20, 1990.<1> In her petition for
enforcement, petitioner indicates that she accepted the agency's offer
to reinstate her as an office automation clerk. She argues, however,
that the position is not comparable with the secretarial position from
which she was terminated. She indicated that there were secretarial
positions in the Greensboro facility, and emphasized that she wanted her
title of "secretary" restored to her. Alternatively, she stated that she
wanted the opportunity to advance to the level of others in her group.
Regarding petitioner's reinstatement to a GS-4 secretarial position,
the compliance record includes a letter to the Commission from the
director of the agency's office of management, dated July 15, 1998.
The letter states that the agency had offered petitioner a position as
a GS-4 secretary in its Greensboro facility. A letter from that same
official to petitioner, dated July 21, 1998, however, indicates that the
agency offered petitioner a position as a GS-303-4 office automation
clerk, with promotion potential to GS-5. In a hand-written response
dated July 30, 1998, petitioner accepted the agency's offer. In a letter
to the Compliance Officer dated April 22, 1999, the agency stated that
the office automation clerk's position is the only comparable position
to the secretarial position in which she was previously employed, and
that petitioner had accepted that position on the advice of counsel.
The agency also noted that petitioner had been hired as a GS-4 and
promoted to GS-5. In addition to its letter, the agency submitted a
staffing chart that listed petitioner as a GS-5. In terms of salary at
least, it appears that petitioner was given the opportunity to advance
to the level of others in her group, since the office automation clerk
position promotion potential ends at GS-5.
In her petition, petitioner argues that the automation clerk position
is not comparable with the secretarial position. She maintains that
the clerk position is inferior because her only duties included typing,
filing, and answering the telephone. In support of its April 22, 1999
letter, the agency submitted position descriptions for the 1990 secretary
position and the 1998 office automation clerk position. These documents
indicate that the secretarial position had evolved into the office
automation clerk position, primarily because of advances in office
automation technology. For example, in 1990, the incumbent needed to
know how to use a typewriter. In 1998, the incumbent had to know how
to use an electric typewriter, a word processor, or a microcomputer
with word-processing and other advanced functions. After reviewing
the descriptions for the two positions, the Commission agrees with the
agency that the office automation clerk position is the closest position
to the secretarial position that petitioner held while employed in 1990.
Based upon its review of the record, the Commission finds that the
agency has fully complied with its order in Request No. 05960575,
requiring that petitioner be offered reinstatement to a GS-4 secretarial
position. Consequently, no further compliance action is necessary.
We therefore deny this petition for enforcement.
STATEMENT OF PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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 22, 1999
_______ _____________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1The order in EEOC Request No. 05960575 includes other elements, none of
which petitioner raises herein. The Commission will therefore continue to
monitor compliance with respect to those elements.