01A35237_r
10-20-2004
Luna C. Hamilton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Luna C. Hamilton v. United States Postal Service
01A35237
October 20, 2004
.
Luna C. Hamilton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A35237
Agency No. 1H-371-0008-00
DECISION
Complainant appeals to the Commission from the agency's August 7, 2003
decision finding no discrimination. Complainant alleges discrimination
on the bases of race (Black), sex (female), and disability (feet) when
she was subjected to continuous management harassment about matters
related to her injury from the period May 24, 1999 through March of 2000.
Specifically, complainant alleges that she was harassed when she was
required to submit to a fitness for duty examination on May 24, 1999,
and management attempted to schedule her for a second examination
by notice dated August 23, 1999. Complainant also alleges she was
harassed when she was forced to work outside her medical restrictions.
The agency found no discrimination after finding that the agency's
request for additional medical documentation via the fitness for duty
examination did not rise to the level of a hostile work environment.
Further, the agency found that complainant is not an individual with a
disability under the Rehabilitation Act because she has not shown that
she is substantially limited in a major life activity. Finally, the
agency concluded that even if complainant presented a prima facie case
of discrimination, the agency presented a legitimate nondiscriminatory
reason for its actions which complainant failed to rebut.
Complainant argues that she was harassed when she was sent for a fitness
for duty and questioned about her disability. She further argues that
she was questioned and felt compelled to show her feet to her supervisors.
The record indicates that as a result of complainant filing an Office of
Workers' Compensation Program (OWCP) claim, the agency sent complainant
for a fitness for duty examination. We find that the fitness for duty
requests were reasonable a result of complainant's OWCP request, and were
not made with discriminatory animus. Complainant has failed to show,
by a preponderance of the evidence, that she was harassed based on her
race, sex, or disability.
Although complainant never formally requested a reasonable accommodation,
the agency attempted to place complainant in positions that required
little standing. The record contains documents from her doctors
indicating that complainant is restricted to standing �only 10 - 20
minutes every couple hours on duty.� The record contains a Temporary
Limited Duty Job Offer accepted by complainant on September 21, 1998.
The record further contains a letter dated September 3, 1998, from
complainant's doctor indicating that the Temporary Limited Duty Job
Offer was within complainant's medical restrictions. Complainant argues
that in September 1999, she was told that she would be sent back to the
workroom floor. However, she �tried to explain that it was not in [her]
best interest to be sent back where [her] injury occurred.� Thus the
agency in response assigned complainant to the position of Supervisor
of the Limited and Light Duty employees.
Complainant argues that the job was �humiliating� because the
limited/light duty employees are stereotyped as �Lame and Lazy.�
She argues that the job �required that she �walk to and from the
Supervisors meeting room to use the computers to input information for
the limited/light duty employees, attend staff meetings, and take [her]
breaks and lunch there.� She states that she was �going back and forth
[so much] that [she] was beginning to have extreme pain in both feet.�
The record further contains complainant's notification of personnel action
dated December 30, 2000, indicating that complainant is currently working
as Supervisor of Distribution Operations. There is no indication in
the record that any of these positions require standing for more than
�10 - 20 minutes every couple of hours.� Moreover, complainant does
not specifically allege that she is required to stand more than 10 to
20 minutes every couple of hours.<1>
The agency's decision finding no discrimination is 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 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
October 20, 2004
__________________
Date
1We make this finding without making a
determination on whether complainant is a person with a disability.