0520130358
09-13-2013
Deborah L. Williams, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Deborah L. Williams,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Request No. 0520130358
Appeal No. 0120113700
Hearing No. 531-2009-00197X
Agency No. 1K-2110003-09
DENIAL
Complainant timely requested reconsideration of the decision in Deborah L. Williams v. U.S. Postal Service, EEOC Appeal No. 0120113700 (February 25, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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.
See 29 C.F.R. � 1614.405(b).
In the underlying case, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and disability when: (1) on August 21, 2008, it gave her a modified job offer outside of her medical restrictions, told her there was no work within her medical restrictions when she refused the offer, and sent her home; (2) on August 27, 2008, after she submitted updated medical documentation, it again gave her a modified job offer outside of her medical restrictions, told her there was no work available within her medical restrictions when she refused the offer, and sent her home. The appellate decision affirmed the Agency's final order, which implemented an EEOC Administrative Judge's decision without a hearing finding no discrimination.
Initially, the appellate decision found no basis to subsume Complainant's disability claim within a pending class complaint, McConnell, et al. v. U.S. Postal Service,
Agency No. 4B-140-0062-06. Specifically, the appellate decision found no evidence in the record that the Agency's actions occurred pursuant to the National Reassessment Process (NRP). Instead, the appellate decision found that there was insufficient work for Complainant to continue in her previous modified assignment as a Training Technician in the Postal Employment Development Center because of a loss of equipment on which craft employees had to be trained.
Next, the appellate decision found that Complainant failed to establish that the Agency denied her a reasonable accommodation. Specifically, the appellate decision found that the Agency attempted to provide Complainant with two modified job offers, but nothing was available to accommodate her severe medical restrictions (no simple grasping, fine manipulation, reaching above the shoulder, or lifting more than 10 pounds). Although Complainant requested to only answer the telephone, the appellate decision found that the Agency was not required to create a position for her.
Finally, the appellate decision found that Complainant failed to establish that the Agency subjected her to disparate treatment. Specifically, the appellate decision found that the Agency articulated legitimate, nondiscriminatory reasons for its actions; namely, it attempted to provide Complainant with modified duty assignments and nothing else was available within her medical restrictions. Moreover, the appellate decision found that Complainant failed to establish that those reasons were a pretext for race, sex, or disability discrimination.
In her request for reconsideration, Complainant made several arguments. First, Complainant argued that the appellate decision erred in not subsuming her disability claim within the McConnell class complaint. Specifically, Complainant asserted that the Agency subjected her to the NRP because: (i) it sent her home "no work available ... which is what the [NRP] was all about;" and (ii) her April 13, 2009 grievance settlement agreement, which concerned the August 21, 2008 incident, explicitly mentioned the NRP. Second, Complainant argued that the appellate decision erred in finding no genuine issue of material fact. Specifically, Complainant asserted that there is a genuine issue as to whether there was work available within her medical restrictions because: (a) her EEO representative stated in her request for reconsideration that there was work in her former Training Technician position; (b) management testified that they considered assigning her duties of putting labels in trays, gathering unassigned letters, and answering telephones, but did not do so because they believed that her prohibition from performing simple grasping would preclude her from answering telephones; and (c) there was work in General Clerk positions. Third, Complainant argued that while the Agency may not be required to "make work" for her, it did so for a Caucasian male employee. Lastly, Complainant argued that the Agency failed to engage in the interactive process.
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Regarding Complainant's first argument, the record contains no evidence that the Agency's actions on August 21, 2008 or August 27, 2008 involved the NRP. While the April 13, 2009 grievance settlement agreement referenced the NRP ("Management will provide the grievant a new job offer in accordance with 546 of the ELM or the grievant will be reassigned under the [NRP], which may include no work available within her restrictions"), we note that it did so in the context of stating what the Agency would do in the future - not what it did in the past. Regarding Complainant's second argument, the record supports the appellate decision's finding that there is no genuine issue of material fact. As to (a), the EEO representative's unsworn statement in Complainant's request for reconsideration is insufficient to create a genuine dispute. As to (b), Complainant failed to show that the duties constituted a vacant, funded position to which she could have been reassigned. As to (c), Complainant failed to show that there was a vacant, funded General Clerk position for which she was qualified and to which she could have been reassigned. Regarding Complainant's third argument, the record reflects that the Caucasian male employee was not similarly situated because a different supervisor assigned him work and that work assignment occurred in September 2009 - more than a year after the Agency's actions at issue here. Regarding Complainant's fourth argument, we note that an agency's failure to engage in the interactive process does not, by itself, demand a finding that an employee was denied a reasonable accommodation.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120113700 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
__9/13/13________________
Date
2
0520130358
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520130358