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