01A13067_r
09-27-2001
Victoria L. Taylor, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Victoria L. Taylor v. Department of Veterans Affairs
01A13067
September 27, 2001
.
Victoria L. Taylor,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A13067
Agency No. 98-0793
DECISION
Complainant timely appealed to the Commission for a determination as to
whether the agency has complied with the terms of the agency's January 10,
2000 decision. The agency issued a decision on January 10, 2000 finding
that complainant was discriminated against on the basis of disability when
(1) management failed to reasonably accommodate complainant's medical
condition; and (2) complainant was terminated from employment as a
registered nurse on October 17, 1997. The agency awarded, in pertinent
part, the following relief:
As a result of the finding of discrimination, the complainant is entitled
to full, make-whole relief pursuant to 29 C.F.R. Section 1614.501.
Therefore, pursuant to 29 C.F.R. Section 1614.501(c)(5), the agency
shall immediately offer to reinstate the complainant to the position
of Registered Nurse, retroactive to October 17, 1997, with back pay
(less interim earnings), interest, and any and all benefits or training
that she would otherwise have earned or received but for the prohibited
discrimination.
Complainant, by letter dated May 12, 2000, contacted the agency alleging
non-compliance with the January 10, 2000 decision. Complainant initially
argued that the agency should not have deducted disability payments from
her back pay and further argued that she was denied retroactive promotions
and merit increases. The agency issued a decision dated March 9, 2001,
finding that the agency was in compliance with the agency's January 10,
2000 decision. The agency provided a detailed analysis of why complainant
should not have received a promotion or merit increase.
Complainant, on appeal, concedes the claim that the agency should not
have deducted disability payments from her back pay. Therefore, we will
only discuss complainant's argument that she was denied retroactive
promotions and merit increases. The Commission finds that even if
complainant is entitled to retroactive promotions under the remedy
awarded, the agency has shown reasons why complainant would not have
received the promotions or merit increases. Specifically, the agency
contends that complainant was considered for promotion to Nurse II
grade on four separate occasions prior to her. On all four occasions,
there was a finding of the Nurse Professional Standards Board that
complainant failed to meet the nursing practice requirements from the
qualification standards, and was therefore, ineligible for promotion.
The agency is correct in arguing that the burden is on complainant to
show that she would have met the requirements for this type of promotion.
Complainant has not shown why she is eligible or why the agency's reasons
are incorrect.
The agency's decision finding that it has complied with the agency's
January 10, 2000 decision is AFFIRMED.
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 (S0900)
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. 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
September 27, 2001
__________________
Date