0120052163
05-09-2007
Essie L. Little, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Essie L. Little,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01200521631
Agency Nos. 1J- 602-0058-02; 1J-602-0060-03
Hearing No. 210-A4-0310X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal for de novo review, from the agency's December 23, 2004 final
order 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. Complainant, a Flat Sorter
Machine Operator (limited duty) at the Palatine, Illinois, Processing
and Distribution Center, filed two formal complaints in which she
alleged that the agency discriminated against her on the bases of race
(African-American), disability,2 and in reprisal for prior protected
EEO activity (arising under the Rehabilitation Act) when:
1. On April 12, 2002, the agency failed to provide her with adequate time
to consider or consult with an advisor regarding a modified job offer;
2. On June 5, 2003, the agency changed her modified job assignment; and
3. On July 12, 2003, the agency changed her starting time from 7:00
a.m. to 12:30 a.m.3
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).4 Therefore, we AFFIRM the
agency's final order.
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
May 9, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The record indicates that complainant sustained an on-the-job injury
to her back in January 1989.
3 We note that the AJ analyzed this case solely within a disparate
treatment framework. On appeal, complainant does not contend that
the issues should have been analyzed within a reasonable accommodation
framework. In fact, complainant asserts in her Affidavit "No, I did not
request any accommodation." Report of Investigation (ROI), Affidavit A,
at 9. We note that complainant does assert that the job offers were
contrary to her restrictions as approved by OWCP. See ROI, Affidavit
A, at 6. However, her objection to the assignments is the manner
in which they were presented to her; specifically, they were never
approved by OWCP. Based on the above, we find that complainant has
not alleged that the agency's actions constituted a failure to provide
reasonable accommodation, within the meaning of the Rehabilitation Act.
Accordingly, we will not address the question of whether the changes to
complainant's assignments constituted failures on the part of the agency
to provide complainant with reasonable accommodation. Additionally,
we note that for purposes of this decision, we assume arguendo, that
complainant is disabled, pursuant to the Rehabilitation Act.
4 On appeal, complainant's principal contentions are that she was
subjected to discrimination in that (1) the job offer presented to her
did not fulfill the requirements set forth by the rules and regulations
of the Federal Employees' Compensation Act (FECA); and (2) the agency
failed to afford a copy of the changed modified job assignment (and
shift change) to the Officer of Workers' Compensation Program (OWCP) to
see if such changes were suitable. We note that the Commission does not
have jurisdiction to enforce the rules/regulations of these programs.
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0120052163
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036