01A14419
03-13-2003
Dawn D. Walker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Dawn D. Walker v. United States Postal Service
01A14419
March 13, 2003
.
Dawn D. Walker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A14419
Agency No. 4G-752-0238-00
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning her complaint of unlawful 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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted for the Commission's de novo review 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 Letter Carrier at the agency's Lake Highlands Station in
Dallas, Texas. Complainant sought EEO counseling and subsequently filed
a formal complaint alleging that she was discriminated against on the
bases of race (Black), sex (female), and disability (right leg) when she
was denied equitable overtime during January through March 2000. 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. Complainant's only statement on
appeal is to request a hearing before an Administrative Judge.<1>
Turning first to complainant's claims that she was treated disparately
based on her race and sex, we note that complainant must first establish
a prima facie case of discrimination. She can do this by establishing
that similarly situated individuals outside of her protected classes
were treated more favorably than she was or by setting forth some other
evidence from which a reasonable fact-finder could draw an inference of
discrimination. See Furnco Construction Corp. v. Waters, 438 U.S. 567,
576 (1978). Complainant has identified three comparative employees,
two of whom were clerks and one of whom was a carrier like complainant.
We find that the clerks were not similarly situated to complainant
because they were members of a different craft and had different job
responsibilities. While we further find that the named comparative
carrier was similarly situated to complainant, he was not treated more
favorably than she was insofar as he worked even less overtime during the
period in question. Complainant contends that the denial of equitable
overtime was precipitated by her going to her supervisor to discuss
a problem she was having with another employee. However, complainant
presents no evidence from which we could infer that her supervisor's
subsequent denial of overtime was unlawfully motivated by discriminatory
animus towards her race or sex. Accordingly, we conclude that complainant
has failed to establish a prima facie case of race or sex discrimination.
We turn now to complainant's claim of disability discrimination.
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o) and
(p). As a threshold matter, complainant must establish that she is an
"individual with a disability." An individual with a disability is one
who (1) has a physical or mental impairment that substantially limits one
or more major life activities, (2) has a record of such impairment, or (3)
is regarded as having such an impairment. Major life activities include,
but are not limited to, caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
Sitting, standing, lifting, and reaching are also recognized as major
life activities. Interpretive Guidance on Title I of the Americans With
Disabilities Act, Appendix to 29 C.F.R. � 1630.2(i).
Complainant was working a limited duty assignment. We infer from
complainant's �limited� duty status that she incurred an on-the-job
injury. Complainant's restrictions of note were that she could not
climb, kneel, bend or stoop at all and that she could only push and
pull for two hours per day. Complainant has presented no additional
evidence regarding her limitations or whether these restrictions applied
off, as well as on, the job. Accordingly, we decline to find that the
impairment associated with complainant's right leg substantially limited
any one of her major life activities. Additionally, we conclude that the
record does not support a finding that complainant either had a record
of or was regarded as having an impairment which substantially limited
any of her major life activities. Accordingly, complainant's claim of
disability discrimination fails. Therefore, after a careful review of
the record, including arguments and evidence not specifically addressed
in this decision, we affirm the agency's final decision.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
March 13, 2003
__________________
Date
1 We note that complainant does not have a right to a hearing on appeal.
29 C.F.R. � 1614.404.