05A30142
01-13-2003
Marie A. Greene, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Marie A. Greene v. United States Postal Service
05A30142
January 13, 2003
.
Marie A. Greene,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Request No. 05A30142
Appeal No. 01A13124
Agency No. 4J-481-0118-99
DENIAL OF REQUEST FOR RECONSIDERATION
Complainant timely initiated a request to the Equal Employment Opportunity
Commission to reconsider the decision in Marie A. Greene v. United
States Postal Service, EEOC Appeal No. 01A13124 (September 19, 2002).
EEOC Regulations provide that the Commission may, in its discretion,
reconsider any previous Commission decision where the requesting party
demonstrates 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. See 29 C.F.R. � 1614.405(b).
In her formal complaint, complainant alleged that she was discriminated
against on the basis of disability when the agency reassigned her
from the carrier craft to the clerk craft. The appellate decision
affirmed the agency's finding of no discrimination. In her request for
reconsideration, complainant has not presented any evidence or argument
that was not previously considered by the Commission when we affirmed
the agency's final decision. As stated in the appellate decision, the
Rehabilitation Act does not require an agency to create a �make work�
position or to reassign the essential functions of a position in order
to accommodate an individual with a disability. Moreover, to the extent
complainant contends that her limited duty status conferred upon her
certain benefits and privileges of employment, we note that while that
may be true pursuant to the agency's workers compensation agreements,
it is complainant's burden under the Rehabilitation Act to establish
that there was a vacant funded position, comparable to the position
she held at the time of her reassignment, for which she was qualified
and to which she could have been reassigned. See Bielfelt v. United
States Postal Service, EEOC No. Appeal 01A10475 (June 19, 2002). As the
appellate decision found, complainant did not meet this burden.<1>
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the request. The decision in EEOC
Appeal No. 01A13124 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
January 13, 2003
______________________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 Assuming without finding that the appellate
decision erroneously stated that complainant was a part-time as opposed
to full-time employee in the carrier craft, the error was not material
to the outcome of the case for the reasons set forth above.