0120091082
06-24-2009
Cecilia Manjarres, Petitioner, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Cecilia Manjarres,
Petitioner,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091082
Agency No. 200P03772002100819
DECISION
On January 12, 2009, complainant filed an appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) appealing a December 11, 2008
final decision and seeking enforcement of an order set forth the agency's
final decision dated June 22, 2006. See 29 C.F.R. � 1614.401(e).
At the time of the events at issue, complainant worked as a Veterans
Claims Examiner, GS-9, at a Veterans Service Center in San Diego,
California. On February 8, 2002, complainant filed an EEO complaint
alleging that the agency failed to provide her with reasonable
accommodation for her disabilities. Specifically, complainant asserted
that management failed to conduct an adequate search for a suitable
position to which complainant could be reassigned as a reasonable
accommodation of last resort.
In its June 22, 2006 final decision on the complaint, the agency
found that the evidence of record sustained complainant's charge
of discrimination, and complainant was awarded, among other things,
retroactive reassignment to an appropriate position and back pay and
benefits if complainant submitted medical information indicating that
she was "qualified to perform the essential functions of a funded vacant
position within the local commuting area where complainant worked." The
period for back pay was set from March 25, 2002 to the effective date of
her reassignment or the date she declined the offer of reassignment.
In a letter dated October 31, 2008, addressed to the agency's EEO office,
complainant alleged that the agency failed to fully comply with the
order in its decision. Specifically, complainant asserted the agency
had not provided her with any back pay.
In a decision letter dated December 11, 2008, the agency found that
complainant's enforcement request was filed two years after she became
aware she was not going to be paid, and was thus untimely. The agency also
explained that because complainant has made it clear that she is unable
to work, and therefore cannot be reassigned to a suitable position, it was
not obligated to pay her back pay. Complainant filed the instant appeal.
The Commission finds that the agency's June 22, 2006 decision makes
clear that complainant has to show that she is able to perform the duties
of a position, with or without reasonable accommodation in order to be
reassigned and be eligible for back pay.1 Instead, the record established
that complainant informed the agency that she was "unable to work due to
[her] service and non-service medical disabilities." She further stated
she was "medically retired." In her appeal, complainant reiterates much
of the background and her claims, stating she does not understand why
she is being asked to return to work when she is unable to work.
Because, by the express terms of the agency June 2006 final decision,
complainant was entitled to back pay only if she could show she was
able to return to a position with or without reasonable accommodation,
the agency is not required to pay her back pay or other benefits. As
such, the Commission affirms the agency's decision which found it was
in full compliance with its remedial order and did not owe complainant
any monies.
Accordingly, the agency's December 11, 2008 final decision is affirmed.
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
June 24, 2009
__________________
Date
1 After receiving the June 22, 2008 final agency decision, complainant
did not appeal the portion of the remedial order concerning the
circumstances under which she was entitled to back pay. We note that she
did appeal the agency's denial of an award of compensatory damages. In
Manjarres v. Department of Veterans Affairs, EEOC Appeal No. 0120064538
(March 5, 2008), the Commission affirmed the denial of compensatory
damages, finding that the agency acted in good faith. The decision
noted that, "complainant's appeal is limited to the contention that she
is entitled to compensatory damages."
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0120091082
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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