0520120424
06-21-2013
Rochelle Roberson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Rochelle Roberson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Request No. 0520120424
Appeal No. 0120100348
Agency No. 1F942000706
DENIAL
Complainant timely requested reconsideration of the decision in Rochelle Roberson v. U.S. Postal Service, EEOC Appeal No. 0120100348 (April 18, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to 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).
BACKGROUND
Complainant alleged that she was discriminated against on the basis of disability when on or about June 19, 2006, the Agency did not allow her to return to work. In November 2004, she stopped working and was receiving compensation from the Office of Workers' Compensation Programs (OWCP). On June 19, 2006, after being absent approximately 19 months, Complainant appeared at work presenting medical documentation from her treating physician that significantly conflicted with a medical evaluation recently conducted by the Department of Labor's contract physician. Consequently, because of the conflicting opinions, Complainant was sent home until the evaluations could be reconciled.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over the Complainant's objections, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision finding that Complainant failed to establish that the Agency subjected her to discrimination as alleged. The Agency issued an order adopting the AJ's decision. The previous decision affirmed the Agency's final order.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant argues that the underlying appellate decision misinterpreted material facts by finding that she was not a qualified individual with a disability. Specifically, Complainant argues that she had been cleared to return to her previous modified job duties, and that, contrary to the previous decision's findings, the inclusion of the "sedentary" comment by her treating physician did not seek nor require a change in her assigned duties. According to Complainant, the modified position that she occupied before leaving her job in 2004, was also sedentary.
ANALYSIS AND FINDINGS
Complainant is reminded that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9 � VII.A. (Nov. 9, 1999). Because Complainant has not put forth any arguments which the Commission finds to be material to the outcome of the underlying decision, or that were not previously considered in rendering the underlying decision, the Commission finds that Complainant has not demonstrated that the underlying decision involved a clearly erroneous interpretation of material fact or law. Additionally, Complainant has failed to successfully argue or demonstrate that the underlying decision would have a substantial impact on the policies, practices, or operations of the Agency.
In the instant matter, Complainant was attempting to return to work after a 19-month absence. After such an extended period of absence, we find it was reasonable for the Agency to prohibit Complainant from working until the conflict between the newly presented medical documentation and those that were previously identified were resolved. Like the AJ, we do not find pretext. Furthermore, we find that the previous decision correctly held that Complainant failed to establish that she was a qualified individual with disability and entitled to an accommodation on June 19, 2006. Because of the conflict in medical opinions, the Agency was justified in trying to resolve the conflict in order to determine if she could perform the essential functions of her position. We further note the AJ's determination that Complainant did not seek to amend her complaint to add a new claim of failure to accommodate from June 19, 2006 forward, and limited the decision to what took place on June 19, 2006, accordingly. Therefore, even if the previous decision erred in finding that the sedentary work restriction was "new," we do not find that it was a material error that would warrant reconsideration.
CONCLUSION
After reviewing 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. 0120100348 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
__6/21/13________________
Date
2
0520120424
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120424