0520090326
04-30-2009
Mary A. Duffy, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Mary A. Duffy,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Request No. 0520090326
Appeal No. 0120070580
Hearing No. 370-2006-00033X
Agency No. ARSHAFTER04DEC08108
DENIAL
Complainant timely requested reconsideration of the decision in Mary
A. Duffy v. Department of the Army, EEOC Appeal No. 0120070580 (February
10, 2009). 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, an Administrative Services
Specialist, alleged that she was discriminated against on the bases of
disability and age when she was not provided a reasonable accommodation,
which resulted in her involuntary retirement. Specifically, the record
reveals that in order to consolidate the support staff into a single
location, the agency decided to change the location of complainant's work
unit. Complainant objected to the move, claiming that the additional
driving distance of several miles would adversely affect her due to
her physical and mental conditions. Following a hearing, an EEOC
Administrative Judge (AJ) issued a decision finding no discrimination.
The agency fully implemented the AJ's decision. The Commission affirmed
the finding of no discrimination. The Commission found that both the
record and testimony supported the AJ's conclusions that complainant was
offered an effective accommodation, and that the agency had satisfied
its obligations under the Rehabilitation Act.
In her request for reconsideration, complainant contends that she was
never offered an effective accommodation. In fact, she maintains that
she was ordered to climb the stairs or lose her job. She also indicates
that she called "Van Pool" and was told that the agency was unable to
provide her with transportation until the first week of January 2005.
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. Specifically, the Commission finds that complainant
failed to show that the appellate decision involved a clearly erroneous
interpretation of material fact or law, or that the appellate decision
will have a substantial impact on the policies, practices, or operations
of the agency. With regard to complainant's contentions on appeal, upon
review of the record, the Commission finds that while complainant did
not receive the accommodation of her choice, reasonable accommodation
options were provided to her. Accordingly, the decision in EEOC Appeal
No. 0120070580 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 (P0408)
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 (Z1008)
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
04/30/09
__________________
Date
3
0520090326
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013