05a30538
04-17-2003
Alice M. Lumpkin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alice M. Lumpkin v. United States Postal Service
05A30538
4/17/03
.
Alice M. Lumpkin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A30538
Appeal No. 01A15385
Agency No. 1C-441-0075-97
DENIAL OF REQUEST FOR RECONSIDERATION
Alice M. Lumpkin (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Alice M. Lumpkin v. United States Postal Service, EEOC
Appeal No. 01A15385 (February 10, 2003). EEOC Regulations provide that
the Commission may, in its discretion, 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).
Complainant filed a formal complaint alleging discrimination on
the bases of race (Black), sex (female), disability (chronic lumbar
strain, bilateral shoulder strain/sprain, cervical spine sprain), age
(D.O.B. 5/24/55), and reprisal when she was treated less favorably than
three other employees regarding the provision of limited duty assignments.
The prior decision recounted the facts of this case, which will not be
repeated in detail here. The instant complaint concerns complainant's
reassignment from a modified carrier limited duty position to a Part Time
Flexible (PTF) position when her physician determined that her physical
restrictions became permanent. Furthermore, complainant alleged that
the agency failed to reasonably accommodate her disability.
As an initial matter, the prior decision found that complainant had
effectively abandoned her claims of discrimination based on sex, age,
race and reprisal. As for her claim of disparate treatment based upon
her disability, the prior decision found complainant failed to establish a
prima facie case of disability discrimination because she failed to raise
an inference of discrimination. Although complainant compared herself
to three other individuals who she claimed were treated more favorably,
the prior decision found that complainant and the three individuals were
not similarly situated. In sum, the prior decision found complainant
failed to demonstrate that she was subjected to disability discrimination
when she was reassigned to the PTF position.
As for her reasonable accommodation claim, the prior decision found that
the agency erred in not determining whether a vacant funded position
existed that was comparable to complainant's modified carrier limited duty
position, prior to reassigning her to the less favorable PTF position.
However, the prior decision also found that although the agency had
not submitted evidence as to its search for a position for complainant,
liability could not attach solely because the agency failed to engage
in the interactive process.
Furthermore, the prior decision found complainant was required to produce
some evidence establishing that she was a "qualified"individual with
a disability by producing evidence that a position existed within her
commuting area for which she was qualified. In her Request, complainant
contends that placing this burden on complainants is unduly harsh given
that the agency has control and ownership over this information.
As we noted in the prior decision, complainant has an evidentiary burden
in such reassignment cases to establish that it is more likely than not
(preponderance of the evidence) that there were vacancies during the
relevant time period into which complainant could have been reassigned.
Clearly, complainant can establish this by producing evidence of
particular vacancies. However, this is not the only way of meeting
complainant's evidentiary burden. In the alternative, complainant need
only show that: (1) he or she was qualified to perform a job or jobs
which existed at the agency, and (2) that there were trends or patterns
of turnover in the relevant jobs so as to make a vacancy likely during
the time period. Hampton v. United States Postal Service, EEOC Appeal
No. 01986308 (August 1, 2002). Although complainant argues that the
agency has thousands of vacancies at the time, she failed to provide
sufficient evidence of the vacancies, her qualifications for these
positions, or any turnover as to any positions at the time.
After a review of complainant's request for reconsideration, 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. Complainant failed
to establish that the prior decision involved a clearly erroneous
interpretation of material law or fact. The decision in EEOC Appeal
No. 01A15385 remains the Commission's final decision. There is no further
right of administrative appeal on the decision of the Commission on this
request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 (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
4/17/03
Date