01a43663
04-13-2005
Stacy Mallard, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
Stacy Mallard v. Department of Justice
01A43663
April 13, 2005
.
Stacy Mallard,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A43663
Agency No. P-2002-0019
Hearing No. 310-2003-05501X
DECISION
On May 5, 2004, complainant filed an appeal claiming that the agency
failed to comply with its final action finding discrimination.
The record reveals that complainant filed a complaint alleging that she
was discriminated against on the bases of race (White) and 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. Complainant claimed that she was
discriminated against when she was reassigned to a unit that does not
have a compressed work schedule and when Associate Warden A stated that
we cannot just accommodate White girls.
Following a hearing, an AJ issued a decision on November 18, 2003,
finding discrimination based on race and sex. The AJ's decision ordered
the agency to:
[R]eturn the Complainant to the unit she occupied prior to her
reassignment in July 2001 with the associated four-ten work schedule
she previously held. In the alternative, if complainant agrees, I am
ordering the parties to determine the best location for her work unit
as long as she is accommodated for her work schedule.
The agency was also ordered to pay complainant $5,000.00 in child care
expenses plus any additional amounts incurred by complainant from the date
of the AJ's decision to the date that she is returned to her original
compressed work schedule by the agency. The AJ also ordered the agency
to post a notice regarding the finding of discrimination. On April 27,
2004, the agency issued a letter to complainant stating that the agency
failed to issue a decision within 40 days of receipt of the AJ's decision
and that the AJ's decision was now the agency's final action.
On appeal, complainant contends that the agency disregarded the AJ
decision and failed to issue a Final Order within the 40-day time frame as
required by 29 C.F.R. �1614.110(a). The Commission finds that because
the AJ's decision becomes the agency's decision there is no issue of
non-compliance with regard to the agency's failure to issue a decision
within 40 days of receipt of the AJ's decision.
Complainant contends that the agency has failed to return her to her
original compressed work schedule. Complainant is not challenging the
remedies awarded by the AJ; rather, complainant is only claiming that
the agency failed to comply with the remedy ordered by the AJ to return
complainant to the unit she occupied prior to her reassignment in July
2001, with the associated four-ten work schedule she previously held.
On appeal, the agency states that although it received the AJ decision
in mid-February 2004, the delay in fully implementing the AJ decision
occurred because the Complaint Adjudication Office did not receive the
AJ decision until April 7, 2004. The agency argues that because the
agency representative was on sick leave, the agency was unaware that the
Complaint Adjudication Office did not receive the AJ decision in February
2004. Once the Complaint Adjudication Office received the AJ decision
a final order was issued on April 27, 2004. The agency claims that the
AJ decision was fully implemented by May 10, 2004. The agency contends
that complainant was immediately returned to a compressed work schedule.
The Commission finds that the record shows that the agency complied with
the remedy in the AJ's decision to return complainant to the unit she
occupied prior to her reassignment in July 2001, with the associated
four-ten work schedule she previously held. The agency has submitted
evidence showing that complainant was returned to the proper schedule
by, at the latest, on May 16, 2004. Complainant failed to present any
evidence to refute the agency's showing that she has now been placed
on the compressed work schedule as required by the AJ's decision.
Furthermore, complainant has failed to provide documentary evidence
to support her apparent claim that she incurred additional child care
expenses due to any delay by the agency in returning her to prior
schedule.
The Commission AFFIRMS the agency's finding that it has complied with
the remedial portion of the agency's decision to return complainant to
the unit she occupied prior to her reassignment in July 2001, with the
associated four-ten work schedule she previously held.
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
April 13, 2005
__________________
Date