0120101878
08-20-2012
Andrea Hart, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Andrea Hart,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120101878
Agency No. 4H-335-0122-09
DECISION
Complainant filed an appeal from the Agency's February 19, 2010 Final Decision concerning her equal employment opportunity (EEO) complaint alleging employment 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 AFFIRMS the Agency's Final Decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Part-Time Flexible Sales and Service Distribution Representative at the Agency's Brooksville Downtown facility in Brooksville, Florida. On August 18, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (mental/physical) and in reprisal for prior protected activity when:
On June 18, 2009 and continuing, Complainant was denied a reasonable accommodation.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its Decision, the Agency assumed, without so finding, that Complainant was an individual with a disability. S3, Complainant's third-level supervisor, stated that Complainant had requested that she be scheduled to work from 9 am until 5 pm and later submitted medical documentation indicating that Complainant was advised by her physician, to work between the hours of 8 am and 6 pm. S3, the Agency noted, stated that Complainant currently worked within her medical restrictions. However, the Agency noted that this accommodation effectively eliminated an essential function of Complainant's position, specifically, that she be available for work. S3, had the Agency found, nevertheless provided Complainant with the accommodation she requested. The Agency found that Complainant's complaint did not allege that she was subjected to an adverse action, only that she had experienced emotional distress because her request to the Agency's District Reasonable Accommodation Committee (DRAC) had been denied. The Agency found that Complainant suffered no harm or loss because of the DRAC's decision, because Complainant was receiving the accommodation she sought and therefore Complainant did not establish that she was subjected to disability or reprisal discrimination as alleged. The Decision concluded that Complainant failed to prove that the Agency subjected her to discrimination.
On appeal, Complainant argues that because the DRAC did not determine that Complainant was a qualified individual with a disability to whom the Agency owed a duty to provide an effective accommodation, Complainant had no assurance that her schedule would remain as she needed it to be, given her medical restrictions.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
As a threshold matter, Complainant must establish that she is a "qualified individual with a disability" within the meaning of the Rehabilitation Act. An "individual with disability" is a person who has, has a record of, or is regarded as having a physical or mental impairment which substantially limits one or more of that person's major life activities, i.e., caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. See, 29 C.F.R. � 1630.2(j).
An impairment is substantially limiting when it prevents an individual from performing a major life activity or when it significantly restricts the condition, manner, or duration under which an individual can perform a major life activity. 29 C.F.R. � 1630.2(j). The individual's ability to perform a major life activity must be restricted as compared to the ability of the average person in the general population to perform the activity. Id.
Under the Commission's regulations, federal agencies are required to make reasonable accommodation for the known physical and mental limitations of qualified individuals with disabilities, unless an agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p); see Appendix. For purposes of analysis only, we assume, without so finding, that Complainant is an individual with a disability entitled to coverage under the Rehabilitation Act.
Upon review of the record, we find that Complainant failed to establish that the Agency did not reasonably accommodate her when, from June 2009 and continuing, she was permitted to work within the restrictions imposed by her health care providers. In so finding, we note that Complainant's medical restrictions during that period included, among other restrictions, limiting her schedule to work between the hours of 8 am and 6 pm. We find nothing in the record indicates that during the time period in question, the Agency denied Complainant's requested accommodation or otherwise worked Complainant outside her medical restrictions. We further concur with the Agency that Complainant is not aggrieved by the language contained in the response she received from the DRAC related to whether Complainant is a qualified individual with a disability.
CONCLUSION
We therefore AFFIRM the Agency's Final Decision, finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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
August 20, 2012
__________________
Date
2
0120101878
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101878