0520050875
01-30-2007
Laurae A. Olison, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Laurae A. Olison,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05200508751
Appeal No. 07A40001
Hearing No. 320-A1-8129x
Agency No. 200M0911
DENIAL
Complainant timely requested reconsideration of the decision in Laurae
A. Olison v. Department of Veterans Affairs, EEOC Appeal No. 07A40001
(April 28, 2005). 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).
After reconsidering 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.2 The decision in EEOC Appeal No. 07A40001 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request. The agency
is directed to comply with the order, as set forth below, to the extent
that it has not already done so.
ORDER (C0900)
The agency is ordered to take the following remedial action:
1. Within thirty (30) calendar days from the date on which this decision
becomes final, the agency shall offer to place complainant in a GS-6
position, with promotion potential to a GS-7, which includes appropriate
and effective accommodations for her physical and mental impairments. The
agency shall make this offer of a GS-6 level (or above) position after
engaging in an interactive process with complainant, her representative,
and her health care providers(s), consistent with the Rehabilitation
Act and Appendix to Part 1630, Interpretive Guidance on Title I of the
Americans with Disabilities Act. Complainant shall notify the agency
within thirty (30) days from the date she received the offer whether she
will accept the offer. The placement shall not include a position in
the agency's prosthetics department, nor shall it include receptionist
duties.
2. Within thirty (30) calendar days of the date of this decision, the
agency shall determine the appropriate amount of back pay with interest,
and other benefits due to complainant for the period from May 1, 1999 to
the present, pursuant to 29 C.F.R. � 1614.501. The complainant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
3. Within sixty (60) days of the date that this decision becomes final,
and ongoing thereafter, the agency shall provide complainant with
training opportunities and other available opportunities, in order to
assist complainant in competing for, or being promoted to, a position
at the GS-7 level.
4. The agency shall restore, credit, and/or reimburse any annual or sick
leave, or leave without pay, that complainant used as a result of the
agency's unlawful actions from February 1999 to November 2001, calculated
to be 80% of complainant's sick leave, annual leave in lieu of sick leave,
and LWOP, used during this time. Complainant is ordered to cooperate
in this calculation. In the event of a dispute, the agency shall credit
and/or pay complainant in the disputed amount, within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
5. Within sixty (60) calendar days of the date that this decision becomes
final, the agency shall provide appropriate EEO and sensitivity training
to all responsible management officials, especially for S (complainant's
immediate supervisor), NM (complainant's second line supervisor), and NO
(responsible personnel official). Such training must not be less than
a total of 40 hours each for S, NM, and NO.
6. The agency shall consider appropriate disciplinary action against
responsible management officials in this case.
7. Within thirty (30) calendar days of the date that this decision becomes
final, the agency shall expunge from all official and unofficial files
the letters of counseling, dated June 17, 1999 and August 24, 1999,
the September 1999 proposed removal, and the denial of her request for
advanced sick leave.
8. Within thirty (30) calendar days of the date that this decision becomes
final, the agency shall tender to complainant non-pecuniary compensatory
damages in the amount of $75,000.00.
9. Within thirty (30) calendar days of the date that this decision becomes
final, if it ha snot already done so, the agency shall pay complainant's
attorney the sum of $34,277.85, for reasonable attorney's fees and costs.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its VA Medical Center, Denver Colorado
facility copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (P0900)
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 (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
January 30, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
2 In the request, complainant argues that her cross appeal was timely.
The Commission notes that the arguments made were considered, and that in
any event, the Commission determined that the given award of compensatory
damages was appropriate.
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0520050875
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0520050875