04990048
11-28-2000
Sheila D. Plater, Complainant, v. Norman Y. Mineta, Secretary, Department of Commerce, Agency.
Sheila D. Plater v. Department of Commerce
04990048
November 28, 2000
.
Sheila D. Plater,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Commerce,
Agency.
Petition No. 04990048
Appeal No. 01981369
Agency No. 95-56-0089
DECISION ON PETITION FOR ENFORCEMENT
The Equal Employment Opportunity Commission (hereinafter, EEOC or
Commission) has docketed a petition for enforcement (PFE) from Sheila
D. Plater (hereinafter, petitioner) requesting enforcement of the
Commission's Order in Plater v. Department of Commerce, EEOC Appeal
No. 01981369 (January 12, 1999). This petition is accepted by the
Commission in accordance with EEOC Regulation 29 C.F.R. � 1614.503(a).
The issue presented in this petition is whether the agency has fully
complied with the Order of the Commission set forth in EEOC Appeal
No. 01981369.
In EEOC Appeal No. 01981369 (January 12, 1999), the Commission found
that petitioner prevailed on her breach of settlement agreement claim,
the Commission reversed the agency's finding of no breach and ordered
the agency to take the following remedial action:
The agency is ordered to specifically enforce the December 26, 1996
agreement. The agency shall within thirty (30) calendar days of the
date this decision becomes final place [petitioner] in a window office.
If there are no window offices available, the agency shall document this
fact showing the offices, the occupants, as well as the occupants' grade
levels, and so notify [petitioner] within thirty (30) calendar days of the
date this decision becomes final. The agency shall provide documentation
of the specific enforcement of the subject agreement and/or the notice to
[petitioner] that no offices are presently available to the Compliance
Officer as referenced below.
On August 23, 1999, the agency submitted its compliance report to the
Commission's Office of Federal Operations. In this report, the agency
indicated that it was unable to enforce the terms of the December
26, 1996 settlement agreement. Specifically, the agency stated that
there were no vacant window offices in the Technical Plans, Policy
and Oversight Staff (TPPOS) area, except for one office that belongs
to a GS-14 Budget Analyst who was on detail to the Office of Budget
until December. The agency stated that it was not practical to move
petitioner into this office because the employee still utilized that
office a few days each week as part of his budget function and noted
that he would be returning there upon the end of the detail. The agency
submitted a floor plan showing that all three of the window offices
allocated to complainant's work unit were occupied by employees at the
GS-14 and 15 levels. The agency noted that there was a fourth window
office which could have been used for the purposes of complying with
the settlement agreement, but stated that due to a reorganization the
office was no longer considered TPPOS work space and claimed that a
non-TPPOS employee now occupied that office. Thus, the agency found
that since compliance was not possible, petitioner's complaint would
be reinstated for processing from the point where processing ceased.
The record shows that on August 19, 1999, the agency sent a letter to
the EEOC's Baltimore District Office reinstating complainant's complaint
and requesting the assignment of an Administrative Judge.
In her PFE, petitioner claimed that if the agency wanted to raise the
argument that there are no vacant TPPOS window offices as a defense to the
Commission's decision, it should have filed a request for reconsideration
within the appropriate time period. Petitioner argued that the agency
should reassign Person B, the non-TPPOS employee who now occupies the
fourth window office, to one of three vacant windowed offices outside
the TPPOS work area. Finally, complainant argues that Person C, who
occupies one of the other window offices is incorrectly designated as
a TPPOS employee.
In response to petitioner's PFE, the agency notes that originally TPPOS
was allocated four exterior window offices, but that due to a renovation
that was ongoing at the time of the settlement agreement, one of the
window offices was reallocated to another work unit. The agency states
that the three remaining TPPOS window offices were assigned to employees
at the GS-14 level or higher. The agency controverts petitioner's
argument that Person C is not a TPPOS employee and presents a copy of
the agency directory listing Person C as a TPPOS employee. The agency
notes that the fourth window office remained vacant for awhile but
was set aside for a GS-15 in the Office of Systems Architecture and
Engineering (OSAE). The agency notes that the Commission's decision
stated that the agency was to assign petitioner to the fourth office
formerly allocated to TPPOS until the GS-15 to whom that office was
assigned arrived. The agency claims that following the decision in EEOC
Appeal No. 01981369, it was planning on placing petitioner in the fourth
office; however, it was not until after the Department had directed the
agency to comply with the Commission's Order that it learned that Person B
had moved into the fourth office. The agency argues that nothing in the
Commission's decision required the agency to displace Person B. Thus,
the agency concludes that intervening events (Person B's occupancy of
the fourth office, which reallocated it as OSAE work space) rendered
the agency unable to specifically enforce the agreement. Therefore,
the agency claims that in providing documentation that there were no
vacant TPPOS offices to which petitioner could have been assigned,
it complied with the Commission's Order.
Upon review of the record, we find that the agency complied with
the Commission's previous decision. In its previous decision, the
Commission's Order stated that petitioner should be assigned a window
office or if there are no window offices available, the agency should
document this fact showing the offices, the occupants, as well as
the occupants' grade levels, and notify petitioner within thirty days
of the date the decision becomes final. In submitting its compliance
report, the agency stated that all window offices allocated to the TPPOS
group are occupied by employees at the GS-14 and 15 levels. The agency
documented this fact by including a floor plan of all the window offices
allocated to the TPPOS work area and identifying the occupants as well
as the occupant's grade levels. We find the record shows that no window
office was available.
The agency claimed that it sent petitioner a copy of the documentation
showing that no window offices were available. The record contains a
copy of the letter to complainant and the relevant documentation showing
that the TPPOS window offices are occupied by employees at the GS-14
and GS-15 levels. In her PFE, petitioner does not deny receiving the
agency's notice that there are no window offices available in TPPOS but
rather challenges the merits of the agency's claim. We find that the
agency complied with our previous decision in EEOC Appeal No. 01981369, in
that after determining that no window offices were available, the agency
provided documentation of this fact to petitioner and the Commission.
Accordingly, petitioner's Petition for Enforcement is DENIED.
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
November 28, 2000
__________________
Date