05990788
03-14-2002
Mable L. Carnahan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mable L. Carnahan v. United States Postal Service
05990788
March 14, 2002
.
Mable L. Carnahan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05990788
Appeal No. 01972163
Agency No. 5D-1945-92
Hearing No. 340-95-3394X
DENIAL OF REQUEST FOR RECONSIDERATION
Mable L. Carnahan (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Mable L. Carnahan v. United States Postal Service,
EEOC Appeal No. 01972163 (May 14, 1999). Complainant alleged that she
was discriminated against on the bases of race (Black), sex (female),
reprisal (prior EEO complaints), and disability (asthma, sinusitis, and
congestive heart failure) when: (1) her step increases were deferred in
or about 1992; and (2) the agency failed to properly process her claim
for disability retirement which resulted in the Office of Personnel
Management's (OPM) initial denial of her application on April 9, 1992.
EEOC Regulations provide that the Commission may, in its discretion,
reconsider any previous Commission decision where the requesting party
demonstrates 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. See 29 C.F.R. � 1614.405(b).
In the previous decision, the Commission found that the AJ's recommended
decision properly analyzed complainant's complaint as a disparate
treatment claim. The Commission concluded that, in all material respects,
the AJ accurately set forth the facts giving rise to the complaint and
the law applicable to the case. Regarding complainant's step increase,
we found that the agency rebutted any prima facie case explaining that
complainant was denied step increases in accordance with the agency policy
because she had been in a LWOP status for more than 13 weeks during the
waiting period for receipt of a periodic step increase. We concluded
that complainant failed to establish a prima facie case of race or sex
discrimination. We also found that complainant's medical review was not
the only one delayed by the first Medical Officer but all medical files
assigned to the officer for review were delayed. Any prima facie case
that complainant may have established was rebutted by this evidence.
Finally, we found that the AJ correctly determined that complainant was
not a qualified person with a disability, in that the record revealed that
complainant was never capable of performing the essential functions of
her position as a postal clerk with or without accommodations. Therefore,
we adopted the AJ's decision and AFFIRMED the final agency decision.
In the instant request for reconsideration, complainant asserts that
she submitted to the Personnel Assistant her application for disability
retirement, medical reports from her physician and voluminous medical
records as appropriate documentation in support of her claim to establish
a service deficiency or a disabling medical condition. Complainant
also asserts that the Personnel Assistant stated that she had too many
records and refused to accept the medical records for submission with
complainant's disability retirement application. Further, complainant
asserts that her disability retirement application was delayed by the
improper processing and that this delay was malicious and intentional.
However, complainant raises no argument or evidence that was not
previously considered in the prior decision. Having considered
the evidence of the record and complainant's submissions, we find,
as we did in the prior decision, that the evidence does not show any
inference of discrimination against complainant's race or sex or because
of reprisal. We also find that complainant was not qualified individual
with a disability. A qualified individual with a disability is one
who can perform the essential functions of the job with or without
an accommodation. See Bradley v. U.S. Postal Service, EEOC Appeal
No. 01962747 (October 22, 1998). The record reveals that complainant
failed to show that the appellate decision involved a clearly erroneous
interpretation of law or would have a substantial impact on the policies,
practices, or operations of the agency.
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the request. The decision in EEOC
Appeal No. 01972163 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
March 14, 2002
__________________
Date