0720070082
01-14-2009
Ann M. Reynolds, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Ann M. Reynolds,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0720070082
Agency No. 200P05932005101777
Hearing No. 480200700025X
DISMISSAL
On September 21, 2007, the agency issued its Final Order and filed a
Notice of Agency Appeal pursuant to 29 C.F.R. � 1614.110(a). In its
appeal, the agency requested that the Commission affirm its rejection
of the EEOC Administrative Judge's (AJ) finding of discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons,
the Commission dismisses the agency's appeal as untimely.
In his Order Entering Judgment and Decision dated July 31, 2007, the
AJ determined that the agency discriminated against complainant based
on disability (cervical degenerative disc disease) when she was not
afforded a reasonable accommodation and constructively discharged in
October-November 2004. In its Final Order (FO), the agency stated that
its Office of Employment Discrimination Complaint Adjudication (OEDCA)
received the AJ's decision on August 14, 2007. Service was made on
OEDCA at the agency's headquarters in Washington, D.C., the address
designated by the agency for receipt of EEO matters and the office
that issued the FO. See 29 C.F.R. � 1614.102(b)(4). Additionally,
we note that the AJ also sent a copy to the agency's Regional Counsel
in Phoenix, AZ. The Certificate of Service informed the parties that
the Commission presumed receipt within five (5) calendar days.
The Commission's regulations call for an agency to take final action on
an AJ's decision within 40 days of its receipt. 29 C.F.R. � 1614.110(a).
If the agency fails to act or does so beyond the allotted time period,
the AJ's decision "shall become the final action of the agency."
29 C.F.R. � 1614.109(i). In this matter, following our regulations,
the agency was required to take action on the AJ's decision on or before
45 days from its issuance (including the five days for mailing), or,
in this case, on or before September 14, 2007. Other than its mere
assertion that OEDCA received the AJ's decision on August 14, 2007, the
agency did not provide an explanation with supporting evidence to show
that it did not receive the AJ's decision within the presumed five days,
nor did the agency seek waiver, estoppel, or equitable tolling pursuant
to 29 C.F.R. � 1614.604(c).1
Because of the agency's failure to take action in a timely manner, we find
that the agency's FO and companion appeal were untimely and that the AJ's
decision became the final action of the agency on September 15, 2007.
CONCLUSION
Accordingly, the agency's appeal is dismissed. The agency is directed
to comply with the Order below.
ORDER (D0403)
To the extent that the agency has not previously done so, it is ordered
to take the following remedial action:
A. Within 30 days of the date this decision becomes final, the agency
shall offer complainant reinstatement to a position that provides her
a reasonable accommodation.2 Complainant must respond to the agency's
offer within 30 days of its receipt. The position must be at the level
that complainant would have occupied but for the discrimination and
constructive discharge, including all promotions and step increases.
The position may not be under the supervision, at any level in the chain
of command, of the individual who was Chief of Human Resources (Chief HR)
in October-November 2004.
B. Should complainant accept the position, the agency must ensure
that it provides to complainant an effective reasonable accommodation
by monitoring her placement for the following six months. The agency
shall appoint a senior employee with knowledge of provision of reasonable
accommodation to serve as complainant's point of contact (POC). The POC
must respond to complainant within two days of her contact with the POC.
The POC may not be under the supervision, at any level in the chain of
command, of the individual who was Chief HR in October-November 2004.
C. Within 60 days of the date this decision becomes final, the
agency shall determine the appropriate amount of back pay, with interest,
and other benefits (e.g., promotions, step increases, leave, matching
retirement payments, other benefit payments) due complainant had she
remained employed with the agency, pursuant to 29 C.F.R. � 1614.501.
The complainant must cooperate in the agency's efforts to compute
the amount of back pay and benefits due after mitigation and shall
provide all relevant information requested by the agency. If there
is a dispute regarding the exact amount of back pay and/or benefits,
the agency shall issue a check to the complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The complainant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision." If complainant does not accept the agency's
offer of reinstatement or does not respond to the agency within 35 days
of the date the agency sent or otherwise delivered its offer, the period
for back pay shall be cut off at that point.
D. The agency shall provide 16 hours of individualized training
for Chief HR addressing his responsibilities with respect to providing
reasonable accommodation to employees with disabilities and eliminating
discrimination in the federal workplace under the equal employment
opportunity laws. The training shall place special emphasis on the
Rehabilitation Act and the prevention and elimination of discrimination
against persons with disabilities. The Commission does not consider
training to be a disciplinary action.
E. The agency shall consider appropriate disciplinary action
against Chief HR and report its decision. If the agency decides to
take disciplinary action, it shall identify the action taken. If the
agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline. The Commission
does not consider training to be a disciplinary action.
F. The agency is further directed to submit a report of compliance,
as provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
Copies of all reports shall be sent to complainant and his/her
representative (if any).3
POSTING ORDER (G0900)
The agency is ordered to post copies of the attached notice on all
employee information stations of its Southern Nevada Health Care System,
Las Vegas, NV. Copies of the notice, after being signed by the agency's
duly authorized representative, shall be posted by the agency within
thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
__01/14/2009______
Date
1 Complainant's letter dated September 26, 2007, called for the dismissal
of the agency's appeal due to untimely filing. The agency is advised to
review our recent decision in Graham v. USPS, EEOC 0720030064 (August 14,
2008).
2 See Enforcement Guidance: Reasonable Accommodation and Undue Hardship
Under the Americans With Disabilities Act (rev. October 17, 2002).
This Guidance is available on the Commission's website at www.eeoc.gov.
3 We hold that the AJ properly determined that complainant was not
entitled to attorney's fees or compensatory damages.
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0720070082
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0720070082