01a42995
02-24-2005
Cassandra D. McKay, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cassandra D. McKay v. United States Postal Service
01A42995
February 24, 2005
.
Cassandra D. McKay,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42995
Agency No. 4-H-330-0022-02
DECISION
Complainant filed this appeal with the Commission from the February 2,
2004 agency decision finding no discrimination.
Complainant alleged that the agency discriminated against her on the bases
of race (Black), color (black), national origin (African-American),
and disability when on September 8, 2001, and September 10, 2001,
complainant was denied work within her restrictions.
In its decision finding no discrimination, the agency stated that
complainant was sent home because there was no work available within
her medical restrictions. The agency also noted that complainant
received workers' compensation benefits through the Office of Workers'
Compensation Programs from September 8, 2001 through November 15, 2001.
Assuming without deciding that complainant has established a prima
facie case of race, national origin and disability discrimination,
the Commission finds that the agency has articulated a legitimate,
non-discriminatory reason for its action. The record reveals that
complainant sustained a work injury on April 19, 1999. The record further
reveals that complainant was working in a limited duty assignment at
the time of the alleged discrimination. The record further reveals
that complainant was provided work within her restrictions, that the
agency sent employees home when there was no work available within the
employees' restrictions and that complainant was sent home when there
was no work available within her restrictions.
Furthermore, we note that complainant has not specifically claimed
that she was denied a reasonable accommodation. On her complaint form,
complainant checked the box indicating disability discrimination, but
she not did not identify a disability on the complaint form. In the
agency's letter of acceptance of the complaint, the agency stated that
complainant had not specified a disability. Although the letter provided
that complainant could challenge the framing of the accepted complaint,
there is no indication that complainant challenged the agency's framing
of the complaint. In her affidavit, complainant has not identified
any disability with any particularity other than to state that she was
�injured on duty, with permanent restrictions.� On appeal, complainant
has not identified any disability. Therefore, because complainant has not
identified any specific disability, we do not address in this decision
whether complainant is a qualified individual with a disability under
the Rehabilitation Act.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's decision because
the preponderance of the evidence of record does not establish that
discrimination occurred.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (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
February 24, 2005
__________________
Date