Cecilia Manjarres, Petitioner,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJun 24, 2009
0120091082 (E.E.O.C. Jun. 24, 2009)

0120091082

06-24-2009

Cecilia Manjarres, Petitioner, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Cecilia Manjarres,

Petitioner,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120091082

Agency No. 200P03772002100819

DECISION

On January 12, 2009, complainant filed an appeal with the Equal Employment

Opportunity Commission (EEOC or Commission) appealing a December 11, 2008

final decision and seeking enforcement of an order set forth the agency's

final decision dated June 22, 2006. See 29 C.F.R. � 1614.401(e).

At the time of the events at issue, complainant worked as a Veterans

Claims Examiner, GS-9, at a Veterans Service Center in San Diego,

California. On February 8, 2002, complainant filed an EEO complaint

alleging that the agency failed to provide her with reasonable

accommodation for her disabilities. Specifically, complainant asserted

that management failed to conduct an adequate search for a suitable

position to which complainant could be reassigned as a reasonable

accommodation of last resort.

In its June 22, 2006 final decision on the complaint, the agency

found that the evidence of record sustained complainant's charge

of discrimination, and complainant was awarded, among other things,

retroactive reassignment to an appropriate position and back pay and

benefits if complainant submitted medical information indicating that

she was "qualified to perform the essential functions of a funded vacant

position within the local commuting area where complainant worked." The

period for back pay was set from March 25, 2002 to the effective date of

her reassignment or the date she declined the offer of reassignment.

In a letter dated October 31, 2008, addressed to the agency's EEO office,

complainant alleged that the agency failed to fully comply with the

order in its decision. Specifically, complainant asserted the agency

had not provided her with any back pay.

In a decision letter dated December 11, 2008, the agency found that

complainant's enforcement request was filed two years after she became

aware she was not going to be paid, and was thus untimely. The agency also

explained that because complainant has made it clear that she is unable

to work, and therefore cannot be reassigned to a suitable position, it was

not obligated to pay her back pay. Complainant filed the instant appeal.

The Commission finds that the agency's June 22, 2006 decision makes

clear that complainant has to show that she is able to perform the duties

of a position, with or without reasonable accommodation in order to be

reassigned and be eligible for back pay.1 Instead, the record established

that complainant informed the agency that she was "unable to work due to

[her] service and non-service medical disabilities." She further stated

she was "medically retired." In her appeal, complainant reiterates much

of the background and her claims, stating she does not understand why

she is being asked to return to work when she is unable to work.

Because, by the express terms of the agency June 2006 final decision,

complainant was entitled to back pay only if she could show she was

able to return to a position with or without reasonable accommodation,

the agency is not required to pay her back pay or other benefits. As

such, the Commission affirms the agency's decision which found it was

in full compliance with its remedial order and did not owe complainant

any monies.

Accordingly, the agency's December 11, 2008 final decision is affirmed.

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

June 24, 2009

__________________

Date

1 After receiving the June 22, 2008 final agency decision, complainant

did not appeal the portion of the remedial order concerning the

circumstances under which she was entitled to back pay. We note that she

did appeal the agency's denial of an award of compensatory damages. In

Manjarres v. Department of Veterans Affairs, EEOC Appeal No. 0120064538

(March 5, 2008), the Commission affirmed the denial of compensatory

damages, finding that the agency acted in good faith. The decision

noted that, "complainant's appeal is limited to the contention that she

is entitled to compensatory damages."

??

??

??

??

2

0120091082

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120091082