0120092136
07-07-2011
Debra L. Cook, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Debra L. Cook,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120092136
Hearing No. 560-2008-00251X
Agency No. 4G-730-0091-07
DECISION
Complainant appeals to the Commission from the Agency’s final
decision dated March 18, 2009, finding no discrimination. 29 C.F.R. §
1614.405(a). For the following reasons, we AFFIRM the Agency’s final
decision.
BACKGROUND
In her complaint, dated December 14, 2007, Complainant, a City Carrier at
the Agency’s Robert W. Station of the Tulsa, Oklahoma Post Office,
alleged discrimination based on sex (female), age (over 40), and
disability (back, feet, depression) when: (1) on September 20, 2007, she
was denied accommodation when her mounted route bid was taken from her;
and (2) on November 30, 2007, she was sent home for the rest of the day
without pay because she could not case mail. After completion of the
investigation of the complaint, Complainant requested a hearing but later
withdrew the request. The Agency then issued its final Agency decision
concluding that it asserted legitimate, nondiscriminatory reasons for
its action, which Complainant failed to rebut.
ANALYSIS AND FINDINGS
Initially, we note that Complainant on appeal withdraws claim (2) because
she was paid for the rest of the day that she was sent home on November
30, 2007; accordingly, we will not address this claim.
Turning to claim (1), after a review of the record, we, assuming arguendo
that Complainant had established a prima facie case of discrimination,
find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incident. Complainant indicated that after
she had undergone surgery, she returned to work on August 2, 2007.
However, Complainant claimed that although she was a senior bidder for
Job #2398824, route 3642, she was denied that bid on September 20, 2007.
Assuming (without deciding) that Complainant was an individual with
a disability, we find that she failed to show that she was denied a
reasonable accommodation or that any Agency action was motivated by
discrimination. Specifically, the Agency stated that Complainant’s
most recent medical restrictions as of July 24, 2007, indicated that she
could lift up to 35 pounds intermittently, walk and stand up to 4 hours
intermittently, and no climbing or kneeling. The Agency indicated that
as a City Carrier, Complainant was required to lift up to 70 pounds,
walk and stand up to 8 hours continuously. Complainant contended that
she was able to perform all essential functions of her carrier position
with accommodation, i.e., casing from a seated position and getting
“delivery help” to keep her workday at eight hours. The Agency
stated that Complainant tried to carry route 3642 for a period of time
but management had to give away approximately 90 minutes of work per
day because it was beyond her medical restrictions.
The Agency stated and we agree that Complainant failed to show any
similarly situated employees who were treated differently than Complainant
regarding the alleged incident. Furthermore, we find that Complainant
has not shown that she was required to work in violation of any medical
restriction. The record indicates and since August 2, 2004, due to her
on-the-job injury, Complainant clearly had been provided with a modified
carrier assignment, and continued to do so after the alleged incident
at issue. Despite her claim, it is noted that Complainant was not
entitled to an accommodation of her choice, i.e., route 3642 assignment
with “delivery help.” Therefore, we find that Complainant was not
denied a reasonable accommodation and was not discriminated against on
the alleged bases.
CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination
is AFFIRMED.
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
7/7/11
__________________
Date
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0120092136
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092136