0520090569
09-18-2009
Cathie E. Simmons, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Cathie E. Simmons,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520090569
Appeal No. 0120080400
Agency No. 200L-0598-2007100791
DENIAL
Complainant timely requested reconsideration of the decision in Cathie
E. Simmons v. Department of Veterans Affairs, EEOC Appeal No. 0120080400
(June 5, 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 our previous decision, the Commission affirmed the agency's final
order, finding that complainant was not discriminated against based on
disability and in reprisal for prior protected EEO activity when she
was placed on a performance improvement plan (PIP) in November 2006,
and not afforded a reasonable accommodation.
Complainant, through her representative, requests that the Commission
reconsider its decision because the agency "misrepresented information to
the Commission resulting in erroneous interpretation of material facts
that caused the adverse decision." Specifically, complainant argues
that, contrary to the agency's assertions, she provided the agency with
sufficient medical documentation to support her disability/reasonable
accommodation claim; she did not refuse to do work within her medical
restrictions; and the agency's actions were in reprisal for her prior
protected EEO activity. In response, the agency urges the Commission
to deny the request.
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. We find that complainant is raising the same arguments
made on appeal. A request for reconsideration is not a second appeal.
We further find that the Commission's previous decision properly found
that complainant failed to establish a prima facie case of discrimination
based on reprisal for prior protected activity. We also concur with the
previous decision's determination that she failed to establish that the
agency's legitimate, nondiscriminatory reasons for placing her on a PIP
were a pretext for disability discrimination or that she was improperly
denied a reasonable accommodation. Therefore, the decision in EEOC
Appeal No. 0120080400 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
___9/18/09________________
Date
2
0520090569
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0520090569