05980006
05-20-1999
The Estate of Jane M. Pickering, Appellant, v. Togo D. West, Jr, Secretary, Department of Veterans Affairs, Agency.
The Estate of Jane M. Pickering v. Department of Veterans Affairs
05980006
May 20, 1999
The Estate of Jane M. Pickering, )
Appellant, )
) Request No. 05980006
v. ) Appeal No. 01956634
) Agency No. 94-1547
)
Togo D. West, Jr, )
Secretary, )
Department of Veterans Affairs, )
Agency. )
__________________________________)
DISMISSAL
On September 29, 1997, Robert C. Laity, acting as an EEO
representative<1>, timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision in Jane
M. Pickering v. Jesse Brown, Secretary, Department of Veterans Affairs,
EEOC Appeal No. 01956634 (September 12, 1997). For the reasons that
follow, appellant's request is dismissed.
In May 1994, appellant, a Medical Technician, GS-7, filed a formal
complaint maintaining that agency officials discriminated against
her because of her sex (female) and physical disability (rheumatoid
arthritis) when they failed to grant, as a reasonable accommodation,
her request to be reassigned to the day shift. On August 14, 1995,
the agency issued a final decision that found appellant had not been
discriminated against. The agency noted in this regard that: (1)
the day shift was more stressful than the evening shift<2>; (2) there
were no vacant day shift Medical Technician positions, and the need
was too great on the evening shift to transfer appellant's position;
(3) management conducted an unsuccessful canvas for volunteers to trade
shifts with appellant; and (4) appellant was not qualified for a vacant
Health Technician position because the position required experience in
and knowledge of operating room procedures and urology. The previous
decision, EEOC Appeal No. 01956634 (September 12, 1997), affirmed the
agency's finding of no discrimination.
In October 1995, the agency issued a proposal to remove appellant
because she had been in a continuous non-pay status since April 12, 1994.
Appellant filed an appeal with the MSPB. Appellant, before the MSPB,
maintained that the agency, among other things, discriminated against
her by not accommodating her disability (rheumatoid arthritis) when
her request to be reassigned to the day shift was denied. After an
initial decision from the Board, which found that appellant had not
been discriminated against, appellant's Petition for Review was denied.
On February 11, 1998, appellant's representative sought the Commission's
review of the MSPB's decision. On October 8, 1998, the Commission,
in Pickering v. VA, EEOC Petition No. 03980044 (October 8, 1998),
issued a decision that concurred with the MSPB decision. According to
the Commission, appellant was not a qualified person with a disability
because she failed to articulate a reasonable accommodation that would
have enabled her to work. Specifically, the Commission noted the lack of
vacancies on the day shift for which appellant qualified, the agency's
efforts to find a day shift employee who was willing to switch shifts
with appellant, the likelihood that a switch to the day shift would
have been more problematic for appellant and appellant's unwillingness
to cooperate with the agency's efforts to modify her position.
On September 29, 1997, appellant's representative filed a request for
reconsideration (RTR) concerning EEOC Appeal No. 01956634 (September
12, 1997). Appellant, in large part, reargued the facts of the case.
She also maintained that the previous decision erred because it did not
consider the fact that she was also disabled due to depression and work
related stress. The agency did not respond to appellant's RTR.
A review of appellant's RTR indicates that she merely reiterated her
contention that she was denied a reasonable accommodation when she was not
reassigned to the day shift. As noted above, the Commission concurred
with the MSPB's determination that appellant was not discriminated
against with regard to the denial of her request to be reassigned to the
day shift. Insofar as the Commission has already reached a determination
regarding this issue, we find that this matter is res judicata and cannot
be relitigated. See Thompson v. Department of the Army, EEOC Request
No. 05940588 (February 24, 1995).
Accordingly, appellant's RTR is DISMISSED.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
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:
May 20, 1999
Date Frances M. Hart
Executive Officer
1A review of the record does not disclose any documentary evidence that
establishes that Robert C. Laity was designated as the representive of
appellant's EEO complaint. We, however, take administrative notice of
the fact that in a proceeding before the Merit Systems Protection Board
(MSPB) in January 1998, the MSPB, in a related matter involving the
appellant, granted a motion by Mr. Laity and recognized him as appellant's
representative in that proceeding. See Carl M. Cole, Administrator
of the Estate of Jane M. Pickering v. Department of Veterans Affairs,
MSPB Docket No. NY-0752-96-0150-I-1.
2According to appellant's physician, the stress of working in the evening
aggravated her condition.