0520120222
11-09-2012
Calamity Williams, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Calamity Williams,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Request No. 0520120222
Appeal No. 0120101414
Hearing No. 570-2007-00043X
Agency Nos. 1K-2010-026-06, 1K-201-0046-06
DENIAL
Complainant timely requested reconsideration of the decision in Calamity Williams v. U.S. Postal Service, EEOC Appeal No. 0120101414 (December 14, 2011). 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, we affirmed the AJ's decision, finding that it was supported by substantial evidence in the record. We found that Complainant failed to show that she was denied a reasonable accommodation for her disability as alleged. We noted that Complainant failed to prove, by a preponderance of the evidence, that she was a qualified individual with a disability. We found substantial evidence in the record to support the AJ's conclusion that Complainant was unable to perform the essential functions of her mail handler position. We further found that Complainant failed to show that she was subjected to discrimination with respect to the denial of her medical clearance. We noted that Complainant had been absent from work for three years and had severe restrictions in the use of her hands and shoulders. We found no evidence that the Agency's actions were in retaliation for Complainant's prior protected activity. We found no evidence that there were light-duty positions that met Complainant's restrictions.
In her request for reconsideration, Complainant, in pertinent part, contends that she was qualified for the duties of handling torn mail and sorting mail. Complainant contends that she previously performed these duties, which were available when the Agency's Brentwood facility reopened. Complainant contends that these duties are consistent with her restrictions. Complainant further contends that the Commission has held that a complainant can, but is not required to show that a vacant, funded position existed. Complainant also contends that our previous decision failed to address the Ledbetter Fair Pay Act, which became law in January 2009.
We remind Complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. Even considering the information provided in her request for reconsideration, we find that Complainant's contentions fail to show that the AJ findings were not supported by substantial evidence in the record. There is no dispute that Complainant had severe restrictions, which limited the use of her hands. There is also no dispute that a physician found that Complainant was unable to return to work. We note that the record reflects that the torn mail and sorting mail duties were only assigned to Complainant on a temporary limited basis.1
Complainant also contends that the Ledbetter Fair Pay Act applies to her case; however, there is no allegation of a discriminatory compensation decision in this case.
After reviewing 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. The decision in EEOC Appeal No. 0120101414 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 (P0610)
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 (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
November 9, 2012
Date
1 The Commission notes that an employer is not required to create a job for a disabled employee, nor is it required to transform its temporary light or limited-duty assignments into permanent jobs to accommodate an employee's disability. See Mengine v. Runyon, 114 F. 3d 415, 418 (3d Cir. 1997); see also Woodard v. U.S. Postal Serv., EEOC Appeal No. 01A21682 (July 29, 2003); EEOC Enforcement Guidance: Workers Compensation and the ADA, EEOC Notice No. 915.002 at 21 (Sep. 3, 1996).
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0520120222
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520120222