01A23471
08-04-2003
Karen A. Lazzeri, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense (DoD Education Activity), Agency.
Karen A. Lazzeri v. Department of Defense
01A23471
August 4, 2003
.
Karen A. Lazzeri,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense
(DoD Education Activity),
Agency.
Appeal No. 01A23471
Agency No. GE-FY-00-03
Hearing No. 100-A2-7289X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.
Complainant filed a formal complaint alleging that she was discriminated
against because of her disability (depression) when on June 14,
1999, she was denied reinstatement to her former position as a Media
Specialist/Librarian (Specialist) for students in grades 7-12.
The record reveals that in December 1997, complainant applied for the
agency's Administrative Reemployment Rights (ARR) program stating that
she was interested in other educational possibilities other than her
Specialist position. Under the agreement, complainant resigned from
the agency to complete a planned course of study at the University
of Maryland, a non-agency educational institution. Contingent on
complainant successfully completing her studies, and providing the
agency with documentation showing the same, the agency then agreed to
reemploy complainant. Complainant continued to work as a Specialist
until her resignation to begin her educational program in August of 1998.
Complainant failed to complete the course of study as agreed, in that she
was asked to withdraw from the academic program in September 1999, after
missing 18 of 36 contact hours allegedly due to her medical condition.
In January 1999, complainant sought to reapply for a position with the
agency. In June 1999, the agency responded to complainant's request
and informed her that her failure to complete the approved course of
study voided its agreement to reemploy her, and further, that she would
receive no special placement consideration with the agency. Subsequently,
complainant filed a formal complaint of discrimination.
After the complaint was investigated and complainant was issued the
report of investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). The AJ determined that the case was
appropriate for a decision without a hearing, and issued a decision
finding no discrimination. As a procedural matter, the AJ found that
complainant was not aggrieved because, complainant admitted that she has
not received any notification from the agency that her re-application
was denied. Accordingly, the AJ found that complainant's complaint
failed to state a claim since the conduct as alleged did not constitute an
unlawful employment practice. Next, the AJ found that assuming, arguendo,
that complainant stated a claim and was a qualified individual with a
disability, the agency articulated a legitimate nondiscriminatory reasons
for its action, which complainant was unable to show was pretextual.
Specifically, complainant was not granted special placement consideration
because complainant failed to comply with the terms of the ARR agreement
by not completing her course of study under the program. The agency's
final order implemented the AJ's decision.
On appeal, complainant, through her attorney, contended that she applied
for the ARR program to escape a hostile work environment with the agency.
Further, at the time of her application in December 1997, she had
still not sufficiently recovered from an alleged mental breakdown she
suffered in 1995. As a result, complainant contended that she neither
had the mental capacity to enter into a valid contract, nor the ability to
properly and rationally think and make decisions on her own. The agency
requested that we affirm its implementation of the AJ's decision.
The record supports the findings of the AJ and there is no evidence that
discrimination was the cause of complainant's claims.<1> Specifically,
the record reveals that complainant did not comply with the terms of
the agreement she signed to enter the ARR program, in that she did not
complete the educational requirements of the program before reapplying
to the agency. Moreover, there was no language in the standard AAR
agreement that complainant signed indicating that she would receive
special re-employment consideration with the agency if she did not
complete the program due to extenuating circumstances, such as her health
condition. Additionally, the record reveals that three other 1998 AAR
participants who did not complete the program were also denied special
employment consideration. Report of Investigation (ROI), p. 128. As such,
complainant had to apply competitively for vacancies within the agency
and was not eligible for non-competitive placement back in a position.
We note that the mental capacity argument, which was raised for the
first time on appeal, was not supported by medical documentation which
could point to the veracity of complainant's contention.<2> As such,
we decline to address the matter.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected basis.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 4, 2003
__________________
Date
1We assume without finding, for the purposes of analysis only, that
complainant is an individual with a disability.
2Complainant's attorney made reference to a medical report dated December
13, 2001, however, this report was not in the appeal file and was not
a part of the ROI, which was completed in June 2001.