Janice M. Woods, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 21, 2011
0520110722 (E.E.O.C. Dec. 21, 2011)

0520110722

12-21-2011

Janice M. Woods, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.




Janice M. Woods,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Request No. 0520110722

Appeal No. 0120101297

Agency No. 2007-0578-2008-103709

DENIAL

The Agency timely requested reconsideration of the decision in Janice

M. Woods v. Department of Veterans Affairs, EEOC Appeal No. 0120101297

(August 16, 2011). 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(b).

In the underlying case, Complainant alleged she was discriminated against

on the basis of her disability. Specifically, Complainant alleged that

in December 2007, she requested a transfer to a less stressful job as

an accommodation to her disability and was told by her supervisor that

she needed to first resign from her current position in order to be

transferred. Relying on this directive, she resigned from her position

on December 26, 2007, expecting to be transferred to another position.

However, that never occurred. Between December 26, 2007 and April 23,

2008 she applied for and was not selected for various positions with

the Agency. The Agency dismissed the claims finding that Complainant’s

EEO counselor contact in July 2008 was untimely.

On May 7, 2009, the Commission reversed the Agency’s dismissal and

directed the Agency to investigate the complaint consistent with 29

C.F.R. § 1614.108. Janice M. Woods v. Dep’t of Veterans Affairs,

EEOC Appeal No. 0120091027. The Agency, however, processed the complaint

consistent with the Commission’s “mixed case” regulations. In its

final decision, the Agency notified Complainant of her right to file an

appeal with the Merit Systems Protection Board, and not with the EEOC.

Complainant, however, appealed that decision to the Commission. In Janice

M. Woods v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120101279

(August 16, 2011), the Commission vacated the Agency’s final decision

and ordered the Agency to process the complaint consistent with 29

C.F.R. § 1614.108. The Agency filed a request for reconsideration.

In its request for reconsideration, the Agency argues that the

Commission’s decision contains erroneous interpretations of fact

or law because it properly processed her claim under the “mixed

case” regulations because Complainant is arguing, in part, that she

was subjected to a constructive discharge. In response, Complainant

argues that the Agency’s request for reconsideration was untimely.

Further, Complainant argues that her case was not a “mixed case.”

Preliminarily, we note that the Agency’s request for reconsideration was

timely filed. The Agency’s request was received by the Commission on

September 19, 2011. Assuming the Agency received the decision five days

after it was sent by the Commission, we find that the Agency’s request

was filed within 30 days of receipt of the Commission’s decision dated

August 16, 2011.

Turning to the Agency’s request for reconsideration, we find that the

Agency has failed to demonstrate that the Commission’s underlying

decision contained an erroneous interpretation of fact or law.

Although the Agency framed one of Complainant’s allegations as a

“constructive discharge,” in Woods v. Dep’t of Veterans Affairs,

EEOC Appeal No. 0120091027 (May 7, 2009), the Commission clearly

framed the claim to be one of a failure to accommodate, rather than a

constructive discharge. Nothing in the record supports the Agency’s

argument that Complainant’s claim is more appropriately framed as a

constructive discharge claim.

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(b), and it is the decision of the Commission to deny

the request. The decision in EEOC Appeal No. 0120101297 remains the

Commission's decision. There is no further right of administrative

appeal on the decision of the Commission on this request. The Agency

shall comply with the Order as set forth below.

ORDER

Within thirty (30) calendar days of this decision becoming final,

the Agency shall reissue its Report of Investigation and provide

Complainant with notice of her right to request a hearing. See 29

C.F.R. § 1614.108(f). If Complainant does not exercise her right

to request a hearing within the allotted time frame for doing so, the

Agency shall issue a final decision with appropriate appeal rights to

this Commission, pursuant to 29 C.F.R. § 1614.110(b).

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

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 77960, Washington, DC

20013. 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.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)

This is a decision requiring the Agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the Agency, or filed your appeal with the

Commission. 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.

Filing a civil action will terminate the administrative processing of

your complaint.

RIGHT TO REQUEST COUNSEL (Z0610)

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

___12/21/11_______________

Date

2

0520110722

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0520110722