Helen P. Brillhart, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 21, 2006
01a62242 (E.E.O.C. Sep. 21, 2006)

01a62242

09-21-2006

Helen P. Brillhart, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Helen P. Brillhart,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A62242

Hearing No. 150-2005-00564X

Agency No. 1H-339-0005-05

DECISION

On February 21, 2006, complainant filed an appeal from the agency's

January 17, 2006 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. and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

At the time of events giving rise to this complaint, complainant

worked as a Mail Processing Clerk in the agency's Ft. Meyers Processing

and Distribution Center in Florida. On November 6, 2004, complainant

contacted an EEO Counselor and filed a formal EEO complaint dated January

11, 2005, alleging that she was discriminated against on the bases of

disability (eyesight) and age (D.O.B. 11/11/49) when on October 1, 2004,

management did not allow her to return to work, even after being provided

clearance from the medical unit for her return.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing but subsequently withdrew her request. Consequently,

the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b)

concluding that complainant failed to prove that she was subjected to

discrimination as alleged.

In its January 17, 2006 final decision, the agency concluded complainant

failed to establish a prima facie case of age discrimination. The agency

noted that the comparison employees cited by complainant were members of

complainant's own protected age group. The agency noted that Comparative

1 was a PS-5 Mail Processing Clerk on Tour III, Comparative 2 was a

PS-5 Mail Processing Clerk, and Comparative 3 was a Maintenance Supply

Clerk. The agency noted complainant was a PS-6 Mail Processing Clerk.

The agency stated that complainant's supervisor did not supervise any

of the cited comparatives. Thus, the agency concluded that complainant

was not similarly situated to any of the cited comparatives.

With regard to her claim of disability discrimination, the agency found

complainant failed to present documentation to substantiate her claim that

she suffered from "loss of vision of the right eye." The agency noted

that in the September 29, 2004 documentation submitted by her physician,

there were no restrictions listed in the performance of complainant's

work duties. The agency recognized that documentation submitted prior

to September 29, 2004, reflected certain restrictions as a result of

eye surgery. The agency concluded that complainant did not show to what

extent the cited vision impairment affected her daily activities, nor had

she shown how this disability incapacitated her to the extent that she was

substantially limited. Thus, the agency found complainant not disabled.

With regard to her claim of disparate treatment based on disability,

the agency noted that complainant failed to show any similarly situated

comparatives.

Additionally, the agency stated that it articulated a legitimate,

nondiscriminatory reason for its action. Specifically, the agency

noted that complainant's supervisor stated that complainant was not

allowed to return to work after being provided medical clearance because

"complainant's restrictions involved such as no night driving, no depth

perception and needing assistance. Due to the industrial environment

[he] had to clear her return with safety, medical and the plant manager."

Further, the agency noted that complainant returned to work on October

8, 2004, as a result of a letter from management dated October 5, 2004,

and received by complainant on October 7, 2004. Thus, the agency stated

that a delay in return to duty of only four days to ensure the safety

of an employee could not be construed as a discriminatory motivation.

The record reveals that on September 22, 2004, complainant's doctor

submitted a Return to Work Clearance Form noting that complainant had

eye surgery on August 4, 2004, and cleared her to return to work on

October 1, 2004. Complainant's doctor noted that complaint had poor

depth perception and only saw well in her left eye. The doctor noted

complainant was restricted to limited body movement depending on her

overall vision, should avoid working around heavy machines, and had

"restricted night vision for now and should restrict night driving."

The record contains a Return to Work and/or Restriction Notification

which was signed by the Occupational Health Nurse on September 28, 2004.

The Notification stated that complainant could return to work on October

1, 2004, and was restricted to limited body movement, should avoid work

around heavy machinery, should avoid walking around heavy machinery,

and could not drive at night.

The record also contains a September 29, 2004 note from complainant's

doctor stating complaint could return to work on October 1, 2004.

The doctor stated that complainant had poor depth perception and poor

vision in the right eye.

After a review of the record, assuming arguendo that complainant

established a prima facie case of discrimination, we find that the

agency articulated legitimate, nondiscriminatory reasons for its

delay in allowing complainant's return to work after she was cleared

by the Occupational Health Nurse to return to work on October 1, 2004.

Specifically, the agency explained that due to the industrial environment

of the office and as a result of the severity of her restrictions,

complainant's return to work had to be verified by Safety, Medical and

the Plant Manager. The agency stated that each employee, including

complainant, was responsible for transportation to and from work and it

was not management's obligation to adjust employees' schedules due to

personal transportation issues. In fact, complainant indicated that she

did, indeed, find her own transportation to work on her tour. The agency

also stated that due to the nature of complainant's injury (extremely

poor vision in one eye and no depth perception), it was imperative that

they conduct a thorough investigation to determine that there would not

be a safety hazard to her or any other employee. Further, to the extent

complainant was claiming that she was denied a reasonable accommodation,

we find complainant has not shown what purported accommodation she was

denied in order to function in her position.1

Accordingly, the agency's final 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 tends 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

September 21, 2006

__________________

Date

1 For purposes of this decision, the Commission assumes, without deciding,

that complainant is an individual with a disability.

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01A62242

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036