0520160488
01-26-2017
Idell M.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency(FSA)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Idell M.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Farm Service Agency(FSA)),
Agency.
Request No. 0520160488
Appeal No. 0120140792
Hearing No. 520-2011-00199X
Agency No. FSA-2010-00143
DECISION ON REQUEST FOR RECONSIDERATION
On August 16, 2016, Complainant timely requested reconsideration with the Equal Employment Opportunity Commission (EEOC or Commission) of the decision in EEOC Appeal No. 0120140792 (August 4, 2016). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
At the time of events giving rise to the underlying complaint, Complainant worked as a County Executive Director, CO-11, of the Rockingham & Stafford FSA County Office in Epping, New Hampshire.
Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against her based on her disability (foot surgery) when on November 24, 2009, it denied her reasonable accommodation request to telework starting two weeks after her foot surgery on December 1, 2009, i.e., from December 16, 2009 to February 1, 2010. Instead, the Agency approved her request for sick leave, which she took until returning to the office on January 19, 2010.
In our prior appellate decision, we affirmed the Equal Employment Opportunity Commission Administrative Judge's (AJ) decision by summary judgment which found no discrimination because Complainant was not an individual with a disability because her impairment with her left foot was temporary and of short duration. We also found no improper actions by the AJ and that the record was fully developed.
In her request for reconsideration, Complainant expresses her disagreement with the previous decision and presents some of the same arguments she raised on appeal. We emphasize that a request for reconsideration is not a second appeal to the Commission. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at p. 9-18, Chap. 9 � VII.A (Aug. 5, 2015). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.
We note that, among other things, on request Complainant argues that when she returned to work on January 19, 2010, she walked with a cane (until March 5, 2010). Complainant wrote about her cane in a supplemental affidavit, where she also wrote that she was referred to physical therapy on April 2, 2010, and completed it on May 26, 2010. Report of Investigation (ROI), Exh. 6a, at 6. However, the record does not show that when Agency management denied her accommodation request, it was aware that Complainant would likely have such problems with her foot and walking after February 1, 2010.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120140792 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
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 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 26, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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