Cassandra D. McKay, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 24, 2005
01a42995 (E.E.O.C. Feb. 24, 2005)

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