0120111238
03-13-2013
Ramona Perez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Ramona Perez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120111238
Agency No. 4F-913-0083-06
DECISION
On December 27, 2010, Complainant filed a timely appeal with this Commission from the November 23, 2010, final decision (FAD) of the Agency concerning her allegation of unlawful 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the reasons that follow, the Agency's decision is AFFIRMED.
ISSUE PRESENTED
The issue presented in this appeal is whether the Agency satisfied the Commission's Order in EEOC Appeal No. 0120092504 to conduct a supplemental investigation and explain why Complainant was removed from her position in December 2008.
BACKGROUND
Following an on-the-job injury, Complainant was assigned to a modified clerk position at the Monrovia Post Office in Monrovia, California. In July 2006, Complainant was placed off-work. As a result, Complainant filed an EEO complaint, Agency No. 4F-931-0083-06, alleging discrimination based on disability, and other bases, claiming she was not afforded a reasonable accommodation. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ found that the Agency discriminated against her on the basis of disability only, and ordered, inter alia, that Complainant be returned to work. See Hearing No. 480-2007-00030x (September 9, 2008). The Agency adopted the AJ's decision in full on October 23, 2008. Complainant returned to work in November 2008.
In December 2008, Complainant presented new medical restrictions to the Agency and requested a special chair. While her request was pending, she was temporarily removed from the workplace and told to request light duty. The record does not indicate if she made such a request.
In early January 2009, Complainant alleged that the Agency violated its October 2008, final order when it failed to: (1) assign her work within her medical restrictions; and (2) restore used sick and annual leave. Later, Complainant alleged (3) that the Agency informed her in December 2008, that work within her restrictions was unavailable. On April 30, 2009, the Agency issued a FAD responding to her claim of breach. Specifically, the Agency found that (1) it offered Complainant a modified job on November 10, 2008, and she returned to work; and (2) it restored her leave in pay periods seven and eight of 2009. As to (3), the Agency explained that it required further medical information, and, pending its receipt, had no work available for Complainant, and she was directed to apply for light duty. Complainant filed an appeal with the Commission, and, in EEOC Appeal No. 0120092504, the Commission found that the Agency had complied with its final order with respect to issues (1) and (2) but ordered the Agency to conduct a supplemental investigation regarding issue (3), specifically to investigate the issue of whether it failed to comply with the October 23, 2008, final order when, in 2009, it removed Complainant from working her modified position.1
As a result, the Agency conducted a supplemental investigation and issued a new FAD dated November 23, 2010. In its FAD, the Agency summarized the results of its supplemental investigation. The Agency explained that Complainant's December 2008 new medical restrictions required a special chair for a non-work injury. However, no work was available within these new restrictions because the request for a special chair had not been justified. Further, Complainant did not request a light duty assignment. The Agency found that when the supporting medical documentation was supplied, the Agency provided a new job offer to Complainant, including the special chair, and she accepted it on January 30, 2009.
For the period of her absence from December 13, 2008, until she accepted the new job offer on January 30, 2009, the Agency charged her with leave without pay (LWOP). In so doing, the Agency found that this absence was due to Complainant's own failure to provide the new medical information or seek light duty, and not due to any action of the Agency. As a result, the Agency concluded that it had satisfied the order in Appeal No. 0120092504 and was in compliance with its October 23, 2008 final order.
CONTENTIONS ON APPEAL
On appeal, Complainant again asserts that the Agency violated its October 23, 2008 final order when it removed her from her position in December 2008, because she had requested a special chair; the Postmaster sent her home in December 2008; and failed to provide a special chair. She also stated that she was sent home in July 2009.
The Agency's statement in opposition contends that the Complainant's appeal was filed untimely.
ANALYSIS AND FINDINGS
At the outset, we find that the Agency is incorrect when it asserts that Complainant's appeal is untimely. The Agency mistakenly believes that the instant appeal is from a FAD issued on September 27, 2010. The record indicates, however, that Complainant's December 27, 2010 appeal in this case is from the Agency's FAD dated November 23, 2010. Accordingly, we find that Complainant's appeal is timely filed.
The standard of review in rendering this appellate decision from an Agency's FAD is de novo, i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (November 9, 1999), at Chapter 9, � VI.B.
We find that the Agency complied with our previous order. Specifically, we find that the Agency conducted a supplemental investigation as ordered by the Commission in EEOC Appeal No. 0120092504. The Agency provided a full and sufficient explanation and justification for Complainant's removal from her position in December 2008. Specifically, Complainant presented new medical restrictions to the Agency and requested to be accommodated with a special chair. However, the Agency did not have sufficient medical documentation to provide this new accommodation request, despite her 2008 offer for a position.2 We further note that the record reveals that once Complainant provided the relevant medical documentation, the record reveals that the Agency provided her with a position within her limitations including the special chair.
Further, we note that Complainant has not offered evidence or argument, supported by probative evidence, to show that the findings in the Agency's FAD were not true and correct. We also note that she did not respond to the merits of the Agency's FAD, including its finding that it was not responsible for her absence beginning in December 2008.
CONCLUSION
After a review of the record in its entirety and consideration of all statements submitted on appeal, including those not specifically addressed, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision, because the preponderance of the evidence of record does not establish that discrimination occurred.
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 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
_3/13/13_________________
Date
1 We note that EEOC Appeal No. 0120092504 erroneously referred to December 2009, on one occasion; however, the record reveals that the event occurred in December 2008.
2 The Commission has recently held that if an individual's disability or need for reasonable accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer, then the individual is not entitled to the requested accommodation. Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (February 16, 2012).
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0120111238
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2 0120111238