03a60012
11-17-2005
Jennifer Henry v. Dept. of Veterans Affairs Petition No. 03A60012 November 17, 2005 . Jennifer Henry, Petitioner, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Jennifer Henry v. Dept. of Veterans Affairs
Petition No. 03A60012
November 17, 2005
.
Jennifer Henry,
Petitioner,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 03A60012
MSPB No. NY-0752-03-0330-X-1
DENIAL OF CONSIDERATION
Petitioner filed a petition with the Equal Employment Opportunity
Commission (EEOC or Commission) asking for review of the Merit Systems
Protection Board's (MSPB) Opinion and order dated September 1, 2005.
Because of a reorganization, petitioner, a Program Support Clerk,
was required to do extensive filing. When she was unable to do
the essential functions of her position, she was removed from her
position. Petitioner appealed her removal to the MSPB on August 1, 2003,
alleging discrimination based on disability (scoliosis - curvature of
the spine). Petitioner indicated she was unable to open heavy file
drawers repetitively, over a long period of time. On December 30,
2003, an Administrative Judge found the petitioner was discriminated
against because of her disability and that the agency did not show that
accommodating her was an undue hardship. Petitioner sought compliance
of the AJ's decision, and in a Recommendation dated June 18, 2004,
her petition for enforcement was granted, finding that the agency was
not in compliance with the order to accommodate petitioner. The agency
sought review of the Recommendation. In an Opinion and Order dated
September 1, 2005 addressing the Recommendation, the Board remanded the
reasonable accommodation matter to the AJ for further consideration
and investigation. The Board's final order did not give appeal rights
to the Commission.
Thereafter, petitioner filed the instant petition with the Commission
on October 5, 2005, disputing the Board's �interpretation of reasonable
accommodation.� On October 13, 2005, the AJ to whom the matter was
remanded issued a decision dismissing the matter without prejudice,
pending the outcome of the instant decision.
Under 29 C.F.R. �1614.303, individuals who have received a final
decision from the MSPB may petition the Commission for review of
the decision. The record indicates that the Board's Opinion and Order
remanded the matter for further consideration and investigation, and did
not give appeal rights to the Commission. Because the matter is still
pending before the MSPB, the Commission has no jurisdiction to review
petitioner's case. Consequently, the Commission denies the petition
for review.
Petitioner is reminded that according to the AJ's decision of October 7,
2005, she must refile her appeal with the MSPB within 30 days of the date
this decision becomes final if she wishes to pursue the matter further.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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 (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
November 17, 2005
_________________
Date