01A53156
09-11-2006
Fenny Braide, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Fenny Braide,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A53156
Agency No. 1C-191-0103-98
DECISION
JURISDICTION
On March 14, 2006, complainant filed an appeal from the agency's March 4,
2005 final decision concerning his 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 appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the agency's final decision (FAD).
The record indicates that complainant was employed by the agency as a
Transitional Employee at the Philadelphia, Pennsylvania Bulk Mail Center
("facility") between May 7, 1996 and August 4, 1996. The record indicates
that complainant was employed by the agency as a temporary employee and his
time of appointment expired on August 5, 1996. Investigative File (IF) at
Exhibit 1. Complainant alleged that he sustained a severe lumbar spine
injury on March 1, 1996 while working for the agency as a Mail Carrier, and
he was reasonably accommodated by his Supervisor (S1) until August 4, 1997
by casing mail. Although complainant was no longer employed by the agency,
on December 12, 1997, he requested a reasonable accommodation to the
facility's Manager and Postmaster. However, the agency responded on
December 15, 1997, and stated that it did not have a need for the duties
which complainant was able to perform.
Complainant contacted an EEO Counselor and filed a formal EEO complaint on
February 18, 1998, alleging that he was discriminated against in violation
of the Rehabilitation Act, on the basis of disability (lumbar spine injury)
when, from August 4, 1997 and ongoing, the agency failed to provide a
reasonable accommodation. At the conclusion of the investigation,
complainant was provided with a copy of the report of investigation and
notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). When complainant did not request a hearing within the time
frame provided in 29 C.F.R. � 1614.108(f), the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b) concluding that complainant
failed to prove that he was subjected to discrimination as alleged.
In the FAD, the agency initially noted that while complainant alleged that
he was not reasonably accommodated after August 4, 1997, the evidence of
record establishes that he was not working for the agency after August 4,
1996. Further, the FAD considered complainant's allegation of disability
discrimination and found that his physician stated in April of 1997 that
complainant had fully recovered from the injuries he sustained on March 1,
1996, and he was capable of returning to his pre-injury position at the
agency without restrictions. As such, the FAD found that, after April of
1997, complainant could not have been on restrictions. In addition, the
FAD noted that complainant was asked to provide documentation that he was
denied an accommodation from May 15, 1996 to January 20, 1998. According
to the agency, complainant did not provide this documentation, nor did he
identify any information which would require an accommodation from the time
of his examination by the physician in 1997 to the time he requested
counseling in 1998[1]. As such, the FAD found that based on the documents
concerning his medical examination in April of 1997, complainant did not
have restrictions. Further, the FAD noted that complainant did not provide
documentation indicating that he was employed by the agency from August 4,
1996 to the time of his request for counseling in 1998. As such, the FAD
found that complainant failed to establish a prima facie case of
discrimination based on disability. Complainant has made no contentions on
appeal. The agency responded to complainant's appeal, urging the
Commission to affirm the FAD.
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 EEOC Management Directive
110, 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").
Addressing complainant's allegation of disability discrimination, we note
that under Commission regulations, an agency is required to make reasonable
accommodation to the known physical and mental limitations of a qualified
individual with a disability unless the agency can show that accommodation
would cause an undue hardship. 29 C.F.R. �1630.2(o); 29 C.F.R. �1630.2(p).
This includes providing a reasonable accommodation so that an individual
can perform the essential functions of her job, as well as enjoy the equal
benefits and privileges of employment enjoyed by employees without
disabilities. See Appendix to Part 1630 - Interpretive Guidance on Title I
of the Americans with Disabilities Act ("Interpretive Guidance"), �
1630.2(o).
For the purpose of analysis, and without specifically finding, we will
assume that complainant is an individual with a disability under the
provisions of the Rehabilitation Act, as he alleges. In the instant case,
we note that while complainant alleged that he was provided with an
accommodation by S1 until August 4, 1997, the record establishes that
complainant's temporary appointment ended on August 5, 1996. IF at Exhibit
1. While the record indicates that complainant was given a modified
position sorting mail by the agency in May 1996 following his back injury,
there is no evidence that any request by complainant for a reasonable
accommodation was denied by the agency at any time prior to the expiration
of his temporary appointment in August 1996. Further, while complainant
alleges that he was denied an accommodation by the agency until January of
1998, the record indicates that: (1) he was not employed by the agency
after August 5, 1996; and (2) as of April of 1997, a medical report stated
that he did not have any physical restrictions and could perform his pre-
injury position at the agency without restrictions. In other words, even
if complainant had been employed by the agency after April 1997, the
evidence establishes that he did not have any impairment which would have
required a reasonable accommodation. In addition, as found by the FAD,
complainant failed to provide documentation which would have supported his
allegation that he was denied an accommodation between May 1996 and January
1998. Finally, while complainant requested an accommodation in letters to
the facility's Manager and Postmaster in December 1997, we note that
complainant was no longer employed by the agency at that time and thus the
agency was not required to accommodate any impairment which he may have
had. IF at Exhibits 2-3. After a review of the record, even assuming,
arguendo, that complainant was an individual with a disability while he was
employed by the agency, we find that complainant has failed to proffer any
evidence which indicates that the agency improperly denied him a reasonable
accommodation for his back injury between 1996 and 1998. Accordingly,
after a careful review of the record, we find that complainant failed to
establish that he was subjected to disability-based discrimination and
hereby AFFIRM the FAD.
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
______9-11-06____________
Date
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[1] The FAD noted that complainant did not answer a question from the
investigation which identified the requested documentation to support his
allegation that he was denied an accommodation from May of 1996 to January
of 1998. FAD at 4.