01A35048
11-09-2004
Danielle Blakey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Danielle Blakey v. United States Postal Service
01A35048
11-09-04
.
Danielle Blakey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A35048
Agency No. 1-G-787-0007-02
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 Part Time Flexible Clerk at the agency's Austin, Texas
Facility. Complainant sought EEO counseling and subsequently filed a
formal complaint on March 5, 2002, alleging that she was discriminated
against on the basis of disability (flat feet) when:
(1) On November 21, 2001, she was informed that she was being sent for
a second opinion;
On November 27, 2001, the processing of her FMLA request was purposefully
delayed and she was charged with AWOL; and
She was subsequently issued a Notice of Removal dated April 19, 2002.
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. Complainant
initially requested a hearing before an Administrative Judge, but
later withdrew this request and requested that the agency issue a final
decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of disability discrimination in that she failed to
show that she was �disabled� as defined by the Rehabilitation Act.
Even assuming arguendo that complainant was disabled, the agency found
that it articulated legitimate nondiscriminatory reasons for its actions
which were not shown to be pretextual.
On appeal, complainant contends that the record evidence establishes
that she suffers from a disabling condition (flat feet) and that the
agency failed to reasonably accommodate her disability.<1>
We find that complainant has failed to meet her burden of proof. To
establish a claim of disability discrimination under a disparate treatment
and/or failure to accommodate theory complainant must demonstrate that:
(1) she is an individual with a disability as defined in 29 C.F.R. �
1630.2(g); (2) she is a �qualified individual with a disability�
as defined in 29 C.F.R. � 1630.2(m); and (3) she was subjected to
an adverse personnel action under circumstances giving rise to an
inference of disability discrimination and/or denied a reasonable
accommodation. Carney v. Federal Deposit Insurance Corporation, EEOC
Appeal No. 01986113 (August 3, 2000) (citing Prewitt v. United States
Postal Service, 662 F.2d 292 (5th Cir. 1981)).
Herein, assuming, arguendo, that complainant is an individual with a
disability as defined by the Rehabilitation Act, we nonetheless find that,
as to the basis of disability, complainant failed to demonstrate by a
preponderance of the evidence that discrimination occurred. In order to
trigger the accommodation requirement, a nexus between complainant's
asserted disability and the agency's action must be shown. Here,
complainant failed to provide sufficient evidence to show that the
complained of action was based on disability discrimination.
The record evidence revealed that complainant voluntarily entered
into a last chance agreement on October 4, 2001, in which she was
required to maintain satisfactory attendance as defined as no more
than three unscheduled absences per quarter and no absences without
leave, for a period of eighteen months. Notwithstanding this agreement,
complainant did not maintain satisfactory attendance and on April 19,
2002, the agency issued a notice of removal for violating the terms of
the last chance agreement. In the notice, the agency cited 22 unscheduled
absences including unscheduled sick leave, unscheduled leave without pay,
and absent without leave, for the period January 1, 2002 to April 12,
2002. While complainant contends that her unscheduled absences were the
result of the agency's failure to accommodate her disability, complainant
failed to provide sufficient evidence to support this assertion.
The record evidence established that as an accommodation for her foot
condition, complainant requested a temporary light duty assignment for the
period January 28, 2002 to February 28, 2002. In support of this request,
complainant provided medical documentation which showed that she could
work an 8-hour day, but could not walk or stand for more than 4-hours in
an 8-hour day. The agency approved complainant's request for a temporary
light duty assignment for the period requested with walking and standing
restrictions as noted in the medical documentation. Notwithstanding
the accommodation provided, complainant did not maintain satisfactory
attendance during this period. Complainant's unscheduled absences during
this period, belies complainant's claim that her unscheduled absences
were the result of the agency's failure to accommodate her purported
disability since the unscheduled absences occurred during the period
the accommodation requested was provided.
Complainant also requested leave protected by the Family Medical
Leave Act (FMLA). To support this request, complainant submitted
medical documentation showing that she has an �arch problem� in her
feet which prevents standing, could last for one year, and may require
her to be off from work intermittently up to 1-2 days every week. The
documentation further indicated that complainant's complaints are not
considered a �serious health condition.� The agency determined that the
medical documentation was not sufficient to establish the existence of
a FMLA condition, and a result, the agency referred complainant for a
2nd medical evaluation. The agency provisionally approved complainant's
request for FMLA protected leave pending the results of the second medical
evaluation. The second medical evaluation determined that complainant's
foot condition did not warrant FMLA protection. Complainant was provided
an opportunity to challenge the 2nd medical evaluation but failed to
do so. Hence, the leave complainant took between November 16, 2001 to
April 16, 2002 was not protected by FMLA and complainant was charged
with unscheduled absences including absent without leave.
We find that the evidence is insufficient to establish that complainant
was denied a reasonable accommodation based on her purported disability of
�flat feet� and insufficient to establish a nexus between the complained
of actions and complainant's purported disability.
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, we affirm 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
___11-09-04_____________
Date
1 While complainant contends on appeal that
she suffered from depression which was the basis for her EEO filing,
the record evidence establishes that complainant's asserted disability
was �flat feet.�