Frances M. Lee, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 8, 2007
0120062110 (E.E.O.C. May. 8, 2007)

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offer, the Personnel Manager rescinded the reassignment letter at issue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