01A13124
09-19-2002
Marie A. Greene, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Marie A. Greene v. United States Postal Service
01A13124
September 19, 2002
.
Marie A. Greene,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01A13124
Agency No. 4-J-481-0118-99
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant alleges that she was discriminated against on the basis
of her disability (herniated disc) when on February 27, 1999, she was
forced to sign a job offer, which lowered her seniority and changed her
off days in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> For the
following reasons we affirm the final agency decision.
Complainant entered on duty with the agency on October 18, 1989, as a
PS-5 Part-Time Flexible City Carrier. On July 8, 1991, complainant
sustained a work-related injury involving cervical disc hernias.
Thereafter, the agency created a position for complainant �. . . by
reallocating/redistributing marginal vacant job functions . . .�
Complainant's Brief in Support of Appeal p. 6. On February 27, 1999, the
agency reassigned complainant to a Clerk position resulting in the loss
of her seniority in the Carrier craft. Believing that the reassignment
and the resultant loss of seniority violated the Rehabilitation Act,
complainant sought EEO counseling and filed a formal complaint of
discrimination on February 4, 2000. Following an investigation,
complainant requested an immediate final agency decision. In its March
14, 2001, final decision, the agency concluded that complainant failed
to demonstrate that she was discriminated against in violation of the
Rehabilitation Act. This appeal followed. On appeal complainant asserts
her entitlement to her previous position and seniority.
The issue before us is straightforward; did the agency violate the
Rehabilitation Act when it reassigned complainant to the Clerk position?
The Rehabilitation Act requires federal agencies to make reasonable
accommodations to the known physical and mental limitations of an
otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. �
1614.203(c)(1). We assume, without finding, that complainant is an
individual with a disability within the meaning of the Rehabilitation Act.
Reasonable accommodation may include making facilities accessible,
restructuring jobs, modifying work schedules, reassignment to a vacant
position and other similar actions. See 29 C.F.R. �� 1614.203(c)(2);
1614.203(g). The agency, however, is not required by our regulations to
restructure a position by reallocating essential functions. 29 C.F.R. �
1630.2(o).
It is undisputed that complainant's injury left her unable to perform
the essential functions of her original Part-Time Flexible City Carrier
position. Complainant argued that she can, as she was permitted to do
for approximately (7) seven years, perform marginal functions of her
original carrier position. Complainant appears to misunderstand our
regulations; agencies are not required to restructure positions in a
manner which would require the reallocation of essential functions. Id.
Restructuring involves the redistribution of marginal, nonessential job
functions. Id. Accordingly, the Rehabilitation Act does not require
the agency to keep complainant in the carrier craft when, in fact,
she cannot preform the essential functions of carrier work with or
without an accommodation. To the extent that complainant wanted to
perform marginal functions of her original carrier position, we note
that the Rehabilitation Act does not require the agency to consider
accommodating complainant's restrictions by creating a �make work�
limited duty assignment because such an assignment is not a vacant,
funded position.<2> See Saul v. United States Postal Service, EEOC
Appeal No. 01970693 (May 10, 2001). Separately, complainant has failed
to identify by a preponderance of the evidence that she was qualified
for a vacant funded position which was more comparable to her original
position than the clerk position offered by the agency.
Therefore, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the agency's
final decision because the preponderance of the evidence of record does
not establish that discrimination occurred.
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
September 19, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 Although the agency returned complainant to work following her July 8,
1991, injury performing marginal vacant job functions, the agency was
not legally required to do so by the provisions of the Rehabilitation Act.