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