0120100160
05-22-2013
Carol A. Fullman, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Carol A. Fullman,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120100160
Hearing No. 420-2009-00154X
Agency No. 1H-351-0075-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 5, 2009, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., 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. For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD) which found that Complainant failed to demonstrate that she was subjected to discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Operations Support Specialist at the Agency's Birmingham Alabama Processing and Distribution Center (P&DC) facility in Birmingham, Alabama. On January 6, 2009, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), national origin (United States), sex (female), religion (Protestant), color (Pale White), disability (physical and mental), reprisal (prior EEO activity) and age (53) when since June 2008, and continuing she has been denied a reasonable accommodation.
The record reveals that due to Complainant's physical and mental impairments which included (chronic pain and fatigue due to a back injury, narcolepsy, insomnia, sleep disorder, major depression, anxiety panic, dissociate periods of losing time, psychomotor slowing and fatigue, cognitive changes including forgetfulness) her position as an Operations Support Specialist was modified with regard to start time and hours of service. Nevertheless, due to problems with anxiety, Complainant's last day at work was on May 8, 2008. On June 11, 12, and 13, 2008, Complainant contacted the acting supervisor and requested as an accommodation that she be allowed to return to work in the position of District Ad-Hoc Recycling Coordinator, which is a position that she had been allowed to occasionally perform in the past. In response, the acting supervisor informed her via letter of the procedure for requesting reasonable accommodation. Also in June 2008, her physician forwarded a letter to the Agency which indicated that Complainant was unable to work at any job. He indicated that should Complainant's medication be finalized and there was a job description to evaluate, she could possibly return. However, he did not release her to return to work at that time.
On July 7, 2008, Complainant contacted the District Reasonable Accommodation Committee (DRAC) seeking an accommodation. Complainant stated that her physician had approved her return to work with restrictions as follows; flexibility with her work schedule to match her energy level, the ability to move around for 10 minutes every hour, no consistent standing or walking for more than 40 minutes, a low stress/low people exposure environment, and working no more than 9 hours at a time during the daylight hours. The record indicates, however, that the physician did not indicate when the Complainant could work.
The DRAC determined that Complainant was not in need of a new accommodation because she was being accommodated in her present position. Moreover, the DRAC maintained that medical documentation provided by Complainant's doctor in June 2008, indicated that she was unable to work in any position at that time. Complainant argued that her request to return as the District Ad-Hoc Recycling Coordinator was denied because of her protected bases. As such, Complainant filed the instant complaint.
Following an investigation by the Agency, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Complainant withdrew her request and therefore the AJ forwarded the case to the Agency for a FAD. The FAD found that Complainant failed to show that she was discriminated against. Management argued that Complainant failed to show that any other employees not of her protected bases were treated more favorable after their physician wrote that they could not return to work. Notwithstanding, the FAD found that assuming arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was not placed in the District Ad-Hoc Recycling Coordinator position because the position had been a temporary position and it no longer existed. Moreover, the Agency argued that Complainant's physician had indicated that she was not able to return to work in any position.
Further, the FAD determined that Complainant failed to show that she had been denied a reasonable accommodation because the record showed that Complainant had been accommodated in her current position and the position that she wanted to return to was no longer in existence. Most importantly, however was that Complainant was not cleared to return to duty for any position as was evidenced by letters from her physician dated June, November, and December 2008. The Agency found that Complainant was not entitled to accommodation as she was unable to work in any position. Accordingly, the FAD held that Complainant failed to show that its legitimate, nondiscriminatory reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
Complainant made no contentions on appeal. The Agency requests that its FAD be affirmed.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's FAD. We find that assuming, arguendo, that Complainant established a prima facie case of reprisal and discrimination as to all bases, the Agency articulated legitimate nondiscriminatory reasons for its actions, namely, that while Complainant believed that she was ready to return to work, she had not been cleared by her physician to return to duty for any position. In fact, in November and December 2008, Complainant's physician indicated that she was unable to work any job.1 For this same reason, we find that Complainant failed to show that she was denied a reasonable accommodation. Further, as Complainant provided no evidence, other than her conclusory statements that she was subjected to discrimination, we find that the preponderance of the evidence of record does not establish that discrimination occurred here. The Commission hereby, AFFIRMS the Agency's FAD which found that Complainant failed to show that she was subjected to discrimination or was denied a reasonable accommodation.
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
___5/22/13_______________
Date
1 We specifically note a comment by Complainant's physician in the December 2008 letter that "[w]e had previously tried accommodations for her, but that time has long passed." ROI, p 118.
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0120100160
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100160