01A20933_r
04-17-2002
Mary Rutkosky, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Mary Rutkosky v. Department of Veterans Affairs
01A20933
April 17, 2002
.
Mary Rutkosky,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A20933
Agency No. 200J-1119
DECISION
The Commission finds that the agency's September 25, 2001 decision
dismissing complainant's complaint was proper. According to the agency
decision, complainant alleges that she was discriminated against on the
bases of age, disability, and reprisal when:
By letter dated November 23, 1999, [Mr. X], Human Resources Officer
notified [her] that his office had received an update from the
U.S. Department of Labor (DOL) regarding [her] claim/on-the-job injury
that [she] sustained in 1981. [DOL] had been notified that, based upon
a letter dated June 28, 1999, from [Dr. Y], [she was] able to return
to work, with some restrictions. The letter went on to state that the
facility was seeking suitable job opportunities and would be in contact
when a position became available. [Complainant further alleges that she
did not receive a copy of Dr. Y's letter in time.]
By letter of March 12, 2001, [Mr. Z], Worker's Compensation Assistant,
asked [Dr. Y] to review a telephone operator position description and
advise whether it was suitable for [her]. Although [she] received a
copy of this letter, [she] believes [her] rights were violated because
[she was] not provided copies of any attachments and because [Dr. Y]
was contacted without [her] knowledge/involvement.
On or about March 23, 2001, [she] received a letter from [Mr. X] which
stated �Based on restrictions provided by your attending physician
[Dr. Y], M.D., we wish to offer you a telephone operator position Agency
Position Number 562-2564-A. Pay Grade GS-382-4.� It also notified
[her] that if [she] failed to accept the job offer, [her] compensation
benefits might be terminated.
On or about May 2, 2001, [she] received a letter from [Mr. A], OWCP Claims
Examiner, informing [her] that the Agency's job offer was suitable and
that [she was] required to accept the position or risk termination of
[her] compensation.
On both May 8, 2001 and May 17, 2001, [Mr. X] responded to [her]
Privacy Act requests regarding aspects of the job offer, but was, on
both occasions, evasive to many issues.
The agency dismissed complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim, finding that complainant
is not an aggrieved person. The Commission finds that the agency
has misdefined the complaint. The Commission finds that complainant is
alleging that the agency failed to reasonably accommodate her purported
disability. Therefore, the Commission finds that this complaint states a
claim of discrimination alleging a violation of the Rehabilitation Act.
Complainant, however, has failed to state a claim of age discrimination
or a claim of discrimination based on reprisal. Complainant has not
shown how she was harmed apart from the agency's alleged failure to
reasonably accommodate her purported disability. We note that on appeal
complainant may be arguing that she was harmed when she no longer received
Office of Workers' Compensation Program (OWCP) benefits. To the extent
that complainant is arguing she was denied OWCP benefits, we find that
she fails to state a claim because the claim is a collateral attack on
another administrative process.
The agency's decision dismissing complainant's claim of disability
discrimination is REVERSED and we REMAND the claim of disability
discrimination to the agency for further processing in accordance
with this decision and applicable regulations. The agency's decision
dismissing the claim of discrimination on the basis of age and the claim
of discrimination based on reprisal is AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
April 17, 2002
__________________
Date