[Redacted], Venetta S., 1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionJan 5, 2021Appeal No. 2020000414 (E.E.O.C. Jan. 5, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Venetta S.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Request No. 2021000323 Appeal No. 2020000414 Agency No. ARRUCKER19JUN02066 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Venetta S. v. Dep’t of the Army, EEOC Appeal No. 2020000414 (September 9, 2020). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), 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(c). In her underlying complaint, Complainant alleged the Agency discriminated against her based on the bases of disability and reprisal when: 1. On September 11, 2018, the Training Development Chief (“S1”) issued Complainant a counseling statement for unprofessional behavior and going outside the chain of command; 2. On February 27, 2019, S1 issued a Notice of Pending Termination; 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2021000323 2 3. On April 8, 2019, S1 responded to her request for the Reasonable Accommodation of telework; 4. On April 17, 2019 and April 19, 2019, S1 issued a Proposal for Removal; 5. On May 17, 2019, the Director of Training (“the Director”) issued a Decision for Removal; and 6. On May 20, 2019, the Director issued a second Decision for Removal. The Agency dismissed claims 2, 4, 5 and 6 as matters on appeal with the Merit Systems Protection Board (MSPB); and claims 1 and 3 pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. Complainant appealed the dismissal in EEOC Appeal No. 2020000414. In that decision, the Commission affirmed the Agency dismissal. We noted it was clear Complainant pursued her termination through the MSPB. We also noted that at the time of our decision, Complainant had filed an appeal of the MSPB decision, EEOC Petition No. 2020003135. In our decision, we took administrative notice of the documents in EEOC Petition No. 2020003135 in which the MSPB Administrative Judge addressed her termination (claims 2, 4, 5 and 6 of his subsequent EEO complaint), as well as issues inextricably intertwined with the termination - the reasonable accommodation issue (claim 3) and the letter of counseling (claim 1). As such, we found the entire complaint must be dismissed as having been pursued before the MSPB. Subsequently, in Venetta S. v. Dep’t of the Army, EEOC Petition No. 2020003135 (Nov. 17, 2020), we noted that the MSPB Administrative Judge issued a decision affirming the Agency’s removal action. With regard to Petitioner’s denial of reasonable accommodation affirmative defense, the MSPB Administrative Judge found that Petitioner failed to provide objective evidence “show[ing] that she suffered from a disabling condition or had a record of a condition at the time of her reasonable accommodation request in March 2019.” Notwithstanding this finding, the MSPB Administrative Judge continued with the analysis and assumed, arguendo, that Petitioner was an individual with disability. Even with that assumption, the MSPB Administrative Judge determined that Complainant could not show that she was able to perform the essential functions of the Instructional Systems Specialist position. In EEOC Petition No. 2020003135, the Commission concurred with the final decision of the MSPB finding no discrimination. After reviewing the previous decision and the entire record, as well as this Commission’s decision on the merits of her claims in EEOC Petition No. 2020003135, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2020000414 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2021000323 3 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations January 5, 2021 Date Copy with citationCopy as parenthetical citation