Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 19, 20140120122937 (E.E.O.C. Sep. 19, 2014) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120122937 Agency No. 1E853002911 DECISION On July 16, 2012, Complainant filed an appeal from the Agency’s June 13, 2012 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. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). 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 Full-Time Mail Processing Clerk/Automated Markup Clerk at the Agency’s General Mail Facility located in Phoenix, Arizona. On January 9, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability when, on September 22, 2011, she became aware her starting time would change and she was denied 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). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 0120122937 2 FACTUAL BACKGROUND The record shows that on March 14, 2005, Complainant was injured on duty on Tour 3. Effective January 26, 2010, Complainant accepted a modified rehabilitation position in the Computer Forwarding System (CFS) on Tour 3. In July 2011, all of the Tour 3 CFS jobs were abolished, and a limited number of Tour 2 CFS jobs were reposted. However, Complainant was not successful in bidding for those jobs due to her low seniority. The remaining CFS Tour 3 employees, including Complainant, became unencumbered employees on Tour 1 at the Phoenix Processing and Distribution Center (P&DC). On July 16, 2011, Complainant was placed in a limited duty position in the Postal Automated Redirection System Waste section on Tour 3. At that time Complainant’s start time changed to 8:05 p.m.1 On September 8, 2011, Complainant and other co-workers were notified of a second change in starting times: this time from 8:05 p.m. to 12:00 a.m. (midnight) on Tour 1. Complainant asserts that she made various requests to be returned to Tour 3 as a reasonable accommodation for her disability. These requests included a letter dated October 3, 2011, from Complainant to the Senior Manager, Distribution Operations (M1) requesting to be returned to Tour 3. The record shows that M1 denied her request. ANALYSIS AND FINDINGS Reasonable Accommodation Claim We agree with the Agency and conclude that Complainant failed to establish that she was denied reasonable accommodation. The undisputed record shows that Complainant’s request to return to Tour 3 was not based on any medical condition or impairment but based on personal reasons, including that she felt it would be difficult to adjust to the new starting time, she and her family would be unhappy with the change, and did not personally have the lifestyle to work on Tour 1. The record also shows that Complainant’s supervisor (S1) advised her that if she could connect her request to a medical condition that she would have a better chance of receiving an accommodation. However, Complainant never articulated a medical reason or produced any medical documentation that linked her request to her medical conditions. Disparate Treatment Claim M1 testified that the reason for the decision to give all limited duty clerk employees on Tour 1 the same start time, i.e. 1 Complainant does not raise this employment action in her complaint herein. , midnight, was to place the limited duty employees where and when the work would be available in order to increase efficiency. Complainant failed to present evidence to refute this legitimate, non-discriminatory reason for the employment action or show that any Agency official was motivated by discriminatory animus. Accordingly, we find that Complainant failed to establish discrimination by a preponderance of the evidence. 0120122937 3 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. 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 0120122937 4 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 Date September 19, 2014 Copy with citationCopy as parenthetical citation