Marie A. Greene, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionSep 19, 2002
01A13124 (E.E.O.C. Sep. 19, 2002)

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.