0520130200
05-10-2013
Karen L. DerMargosian, Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Karen L. DerMargosian,
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Request No. 0520130200
Appeal No. 0120120713
Agency No. DECA01652009
DENIAL
Complainant timely requested reconsideration of the decision in Karen L. DerMargosian v. Department of Defense, EEOC Appeal No. 0120120713 (December 20, 2012). 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 appellate decision, Complainant alleged that the Agency breached a term of a settlement agreement entered into on August 3, 2010. Specifically, Complainant alleged that the Agency failed to place her in a Clerk, GS-3, Step 5 position within 30 days after the execution of the Agreement. The Commission determined, however, that Complainant's contention was based on her belief that the Agency should have provided her with a position with sedentary duties. The previous decision concluded that no breach had occurred because the terms of the agreement only provided that Complainant would be placed in a clerk position, which, according to the record, did not have sedentary duties. The Commission further noted that if Complainant desired a position with sedentary duties, she should have included those terms in the settlement agreement. Complainant requests that we reconsider our previous decision.
In her request for reconsideration, Complainant argues that the appellate decision erred because the Agency breached its obligation to provide her a clerk position. Complainant alleges that the duties she was provided were not those of a clerk. We find, however, that Complainant has failed to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law. We note that nothing in the record supports Complainant's contentions that the duties she was provided were not those of a Clerk. Further, Complainant argues that the failure of the Agency to provide her sedentary duties means the Agency failed to provide her an accommodation. As noted by the previous decision, the record reflects that the Agency provided Complainant with a Clerk position in accordance with the settlement agreement. We find that any allegation of a failure to accommodate is a separate allegation of discrimination.1 Accordingly, we find that the appellate decision did not err in finding that the Agency met its obligations as provided in the settlement agreement.
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. 0120120713 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 (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
__5/10/13________________
Date
1 If Complainant wishes to proceed with her claim that she was denied an accommodation, she should contact an EEO Counselor.
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0520130200
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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