Ann M. Reynolds, Complainant,v.Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 14, 2009
0720070082 (E.E.O.C. Jan. 14, 2009)

0720070082

01-14-2009

Ann M. Reynolds, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.


Ann M. Reynolds,

Complainant,

v.

Dr. James B. Peake,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0720070082

Agency No. 200P05932005101777

Hearing No. 480200700025X

DISMISSAL

On September 21, 2007, the agency issued its Final Order and filed a

Notice of Agency Appeal pursuant to 29 C.F.R. � 1614.110(a). In its

appeal, the agency requested that the Commission affirm its rejection

of the EEOC Administrative Judge's (AJ) finding of discrimination in

violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons,

the Commission dismisses the agency's appeal as untimely.

In his Order Entering Judgment and Decision dated July 31, 2007, the

AJ determined that the agency discriminated against complainant based

on disability (cervical degenerative disc disease) when she was not

afforded a reasonable accommodation and constructively discharged in

October-November 2004. In its Final Order (FO), the agency stated that

its Office of Employment Discrimination Complaint Adjudication (OEDCA)

received the AJ's decision on August 14, 2007. Service was made on

OEDCA at the agency's headquarters in Washington, D.C., the address

designated by the agency for receipt of EEO matters and the office

that issued the FO. See 29 C.F.R. � 1614.102(b)(4). Additionally,

we note that the AJ also sent a copy to the agency's Regional Counsel

in Phoenix, AZ. The Certificate of Service informed the parties that

the Commission presumed receipt within five (5) calendar days.

The Commission's regulations call for an agency to take final action on

an AJ's decision within 40 days of its receipt. 29 C.F.R. � 1614.110(a).

If the agency fails to act or does so beyond the allotted time period,

the AJ's decision "shall become the final action of the agency."

29 C.F.R. � 1614.109(i). In this matter, following our regulations,

the agency was required to take action on the AJ's decision on or before

45 days from its issuance (including the five days for mailing), or,

in this case, on or before September 14, 2007. Other than its mere

assertion that OEDCA received the AJ's decision on August 14, 2007, the

agency did not provide an explanation with supporting evidence to show

that it did not receive the AJ's decision within the presumed five days,

nor did the agency seek waiver, estoppel, or equitable tolling pursuant

to 29 C.F.R. � 1614.604(c).1

Because of the agency's failure to take action in a timely manner, we find

that the agency's FO and companion appeal were untimely and that the AJ's

decision became the final action of the agency on September 15, 2007.

CONCLUSION

Accordingly, the agency's appeal is dismissed. The agency is directed

to comply with the Order below.

ORDER (D0403)

To the extent that the agency has not previously done so, it is ordered

to take the following remedial action:

A. Within 30 days of the date this decision becomes final, the agency

shall offer complainant reinstatement to a position that provides her

a reasonable accommodation.2 Complainant must respond to the agency's

offer within 30 days of its receipt. The position must be at the level

that complainant would have occupied but for the discrimination and

constructive discharge, including all promotions and step increases.

The position may not be under the supervision, at any level in the chain

of command, of the individual who was Chief of Human Resources (Chief HR)

in October-November 2004.

B. Should complainant accept the position, the agency must ensure

that it provides to complainant an effective reasonable accommodation

by monitoring her placement for the following six months. The agency

shall appoint a senior employee with knowledge of provision of reasonable

accommodation to serve as complainant's point of contact (POC). The POC

must respond to complainant within two days of her contact with the POC.

The POC may not be under the supervision, at any level in the chain of

command, of the individual who was Chief HR in October-November 2004.

C. Within 60 days of the date this decision becomes final, the

agency shall determine the appropriate amount of back pay, with interest,

and other benefits (e.g., promotions, step increases, leave, matching

retirement payments, other benefit payments) due complainant had she

remained employed with the agency, pursuant to 29 C.F.R. � 1614.501.

The complainant must cooperate in the agency's efforts to compute

the amount of back pay and benefits due after mitigation 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." If complainant does not accept the agency's

offer of reinstatement or does not respond to the agency within 35 days

of the date the agency sent or otherwise delivered its offer, the period

for back pay shall be cut off at that point.

D. The agency shall provide 16 hours of individualized training

for Chief HR addressing his responsibilities with respect to providing

reasonable accommodation to employees with disabilities and eliminating

discrimination in the federal workplace under the equal employment

opportunity laws. The training shall place special emphasis on the

Rehabilitation Act and the prevention and elimination of discrimination

against persons with disabilities. The Commission does not consider

training to be a disciplinary action.

E. The agency shall consider appropriate disciplinary action

against Chief HR and report its decision. If the agency decides to

take disciplinary action, it shall identify the action taken. If the

agency decides not to take disciplinary action, it shall set forth the

reason(s) for its decision not to impose discipline. The Commission

does not consider training to be a disciplinary action.

F. 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 of the

agency's calculation of back pay and other benefits due complainant,

including evidence that the corrective action has been implemented.

Copies of all reports shall be sent to complainant and his/her

representative (if any).3

POSTING ORDER (G0900)

The agency is ordered to post copies of the attached notice on all

employee information stations of its Southern Nevada Health Care System,

Las Vegas, NV. 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.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)

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 (M0408)

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 (S0408)

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 (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

__01/14/2009______

Date

1 Complainant's letter dated September 26, 2007, called for the dismissal

of the agency's appeal due to untimely filing. The agency is advised to

review our recent decision in Graham v. USPS, EEOC 0720030064 (August 14,

2008).

2 See Enforcement Guidance: Reasonable Accommodation and Undue Hardship

Under the Americans With Disabilities Act (rev. October 17, 2002).

This Guidance is available on the Commission's website at www.eeoc.gov.

3 We hold that the AJ properly determined that complainant was not

entitled to attorney's fees or compensatory damages.

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0720070082

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0720070082