0120062110
05-08-2007
Frances M. Lee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Frances M. Lee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200621101
Agency No. 1F-901-0099-04
DECISION
Complainant appeals to the Commission from the agency's decision
dated January 17, 2006, finding no discrimination. In her complaint,
complainant, a Flat Sorter Machine Operator, PS-06, at the agency's
Los Angeles Processing and Distribution Center, alleged discrimination
based on race/color (Black/brown), sex (female), age (DOB: 12/09/1950),
and disability (carpal tunnel) when on March 6, 2004, she was not given a
permanent job offer, and when on an unspecified date she was not properly
accommodated.
After completion of the investigation of the complaint, complainant
requested a hearing but an EEOC Administrative Judge (AJ) dismissed it
due to her failure to comply with his orders on two occasions regarding
discovery. Complainant does not contest this on appeal. The agency
then issued its decision concluding that it asserted legitimate,
nondiscriminatory reasons for its actions, which complainant failed to
rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons
for the alleged incidents. Complainant claimed that on March 6, 2004,
she received an Assignment of Unencumbered Employee Partially Qualified
letter instructing her to report to the Hollywood Station as a sales
associate on March 20, 2004.
The agency stated that the alleged letter was based on the agreement
between the union and the agency which indicated that if assignments
remained unfilled and there were partially qualified unencumbered
employees, those employees were to be assigned to the positions in the
order of inverse seniority. Complainant was initially identified as
one such qualified, unencumbered employee and she was notified of her
reassignment at issue by a Personnel Manager. However, after she was
notified that complainant was pending receipt of a rehabilitation job
offer, the Personnel Manager rescinded the reassignment letter at issue
and complainant was not reassigned. Two other employees were deemed
partially qualified as complainant was and were also issued reassignment
letters at the same time complainant's letter was issued.
With regard to complainant's claim that she had not been afforded a
permanent job offer, an Injury Compensation Specialist explained that
no permanent job offers had been made during the past year because of
a national reassessment of the reasonable accommodation process in the
Postal Service. The agency stated that the alleged action was not based
on any discrimination.
The Commission, assuming that complainant is a qualified individual with
a disability (without deciding such), finds that the agency did not fail
to accommodate complainant. In fact, complainant admits that she has
been on permanent limited duty since 2001, and has been a temporary job
offer since 1999. The agency stated that complainant has been working a
series of job assignments since the date her condition was diagnosed, and
there was no evidence that she suffered any adverse employment action as a
consequence of these assignments. The agency also stated that complainant
failed to identify any accommodation she requested which was not granted,
other than her mere statement that she had "requested possible jobs in VCS
room, loose articles, city letter primary mailing." Complainant failed
to identify any specific vacant funded position to which she might be
assigned consistent with her limitations. Complainant also failed to
provide any evidence that she was required to perform her duties beyond
her medical restrictions.
Accordingly, the agency's final decision finding no discrimination is
hereby AFFIRMED.
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 tends 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 8, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120062110
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036