01A00750
03-27-2003
Ann L. Cullerton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ann L. Cullerton v. United States Postal Service
01A00750
March 27, 2003
.
Ann L. Cullerton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A00750
Agency No. 1B-016-0006-98
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint 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 appeal is accepted
pursuant to 29 C.F.R. � 1614.405. For the following reasons, the
Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Mailhandler (Limited Duty), PS-4 at the agency's Central
Massachusetts Processing and Distribution Center facility. Complainant
sought EEO counseling and subsequently filed a formal complaint on
January 14, 1998, alleging that she was discriminated against on the
basis of disability (chronic back strain) when: (1) she was required
to provide medical documentation to substantiate her bid, per letter
dated November 13, 1997, and (2) she was denied full holiday pay since
her return to working nights in 1995.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded, in relevant part, that it had met
its burden of proof to explain its actions. The agency explained that
complainant failed to respond to a request for medical information to
show that she would be able to assume the duties of her new bid position
within six months of placement, as required by its labor agreement.
The agency noted that it could not explain why complainant had not been
required to provide medical documentation to substantiate her 1993 bid,
because its established procedures required such evidence to have been
submitted. The agency further explained that because complainant worked
only part-time, and received the balance of her pay from the Office of
Workers' Compensation Programs (OWCP), the agency was required to tender
holiday pay only for the hours she actually worked, with the balance to
be made up by OWCP.
On appeal, complainant contends, as she did below, that in 1993 she was
able to obtain a bid without submitting medical information. Complainant
notes that the agency has been in receipt of medical information from
her physician regarding her condition. Complainant argues that the
provision of the labor agreement cited by the agency does not apply to
her, because she is not temporarily disabled. The agency requests that
we affirm its FAD.
For purposes of this analysis, the Commission assumes, without deciding,
that complainant has established coverage under the Rehabilitation Act.
Nonetheless, the facts of this case do not establish her claim of
disability discrimination.
The record reflects that complainant did not respond to the agency's
request for information regarding the extent to which she would be able
to perform the duties of her desired bid position within six months of
being awarded the bid. There is conflicting information in the record
regarding whether complainant was expected to provide evidence that she
could assume all of the duties of the bid position within six months,
or only those duties which are deemed �essential functions.�<1> However,
because complainant did not respond to the request for information, the
exact nature of the request is irrelevant.<2> Complainant stated that
she contacted a Human Resources Specialist to request an extension of
time to obtain the information; the Human Rights Specialist stated that
no such conversation occurred. Under the circumstances, the evidence
on this point is in equipoise. See LaMacchia v. Department of Defense,
EEOC Appeal No. 01976971 (December 12, 1999).
Complainant states that the provision of the labor agreement referenced
by the agency does not apply to her, because it addresses employees who
are temporarily disabled. A closer reading of the cited provisions,
however, reveals that the gist of the agency's inquiry is whether, if
the successful bidder cannot presently perform the essential functions
of the bid position at the time the bid is won, he or she is expected to
be able to do so within six months. In that light, such information is
pertinent regardless of whether the employee's limitations are permanent
or temporary in nature. Further, while the agency may have had medical
information regarding complainant's limitations, complainant has not
demonstrated that the information which she had already provided contained
information regarding the extent of her limitations six months from the
date of the bid award.
Complainant also claimed that the agency discriminated against her by
failing to pay her full holiday pay. The agency, however, explained
that under established procedures a nominally full-time employee on
partial workers' compensation receives holiday pay from the agency
up to the number of hours actually worked, with the difference to be
made up by OWCP. The record does not reflect whether OWCP in fact
has made up the difference in pay; however, this is a matter outside
of the Commission's purview. See Hogan v. Dept. of the Army, EEOC
Request No. 05940407 (September 29, 1994); Gray v. Dept. of the Army,
EEOC Appeal No. 01944944 (August 8, 1995).
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, the Commission AFFIRMS
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
March 27, 2003
__________________
Date
1The Memorandum of Understanding referenced by the parties states that
the successful bidder is required to provide evidence that he or she
will be �able to perform the duties of the bid-for position.� The FAD
states that complainant was required to provide evidence that she �could
assume the essential functions of the [bid-for] position ....�
2Nonetheless, the agency is reminded that it may not withhold a bid
position simply because an employee might require reasonable accommodation
to perform the essential functions of the position. See, e.g., Marshall
v. United States Postal Service, EEOC Appeal No. 01990280 (August 21,
2002).