Rosina A. Vacchiano, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Eastern Area) Agency.

Equal Employment Opportunity CommissionOct 20, 2003
01A24611 (E.E.O.C. Oct. 20, 2003)

01A24611

10-20-2003

Rosina A. Vacchiano, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area) Agency.


Rosina A. Vacchiano v. United States Postal Service

01A24611

October 20, 2003

.

Rosina A. Vacchiano,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Eastern Area)

Agency.

Appeal No. 01A24611

Agency No. 1C-451-0119-00

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination in

violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. For the following reasons, the Commission

AFFIRMS the agency's final decision.

The record reveals that during the relevant time, complainant was

employed as a Supervisor, Distribution Operations at the agency's Dayton

Processing and Distribution Center. Complainant sought EEO counseling and

subsequently filed a formal complaint on October 27, 2000, alleging that

she was discriminated against on the basis of disability (bilateral carpal

tunnel, ulnar neuropathy, foot neuromas, causalgia, shin splints, dorsal

superficial cutaneous nerve entrapment, Dequervain's tenosynovitis) when:

(1) the agency failed to timely forward her claim to the Office of

Worker's Compensation Programs (OWCP);

an agency official deleted her e-mails and phone messages regarding

her requests for a reasonable accommodation.

At the conclusion of the investigation, complainant was informed of

her right to request a hearing before an EEOC Administrative Judge

or alternatively, to receive a final decision by the agency. When

complainant failed to respond within the time period specified in 29

C.F.R. � 1614.108(f), the agency issued a final decision.

In its FAD, the agency concluded that complainant did not establish

that she is an individual with a disability because the evidence did

not demonstrate she is substantially limited in a major life activity.

Even assuming arguendo that complainant is disabled within the meaning of

the law, the agency found that it stated legitimate non-discriminatory

reasons for taking the actions in question. Specifically, the agency's

Injury Compensation Specialist (S) stated that she received and forwarded

complainant's claim forms but later found out they were incorrect and

had to be re-done. According to the agency, the appropriate forms were

received by OWCP in March and April 2000 and processed thereafter.

In addition, the agency dismissed complainant's claim referring to

deleted e-mail and phone messages to the extent that it related to a

denial of a reasonable accommodation, because it stated the same claim

that had been raised in another complaint.

On appeal, complainant contends that the agency failed to consider

evidence that demonstrated S intentionally delayed the processing of

her OWCP paperwork which, she asserts, proves S discriminated against

her. She also contends that the evidence establishes that she was not

afforded additional accommodations after she notified the agency that

its modifications to her job duties caused increased pain to her foot

and hand conditions.

The agency argues that complainant failed to demonstrate that its

explanation for delays in processing complainant's paperwork were a

pretext for discrimination based on a disability. The agency also urges

the Commission to dismiss complainant's claims because they are merely

collateral attacks on the OWCP process which according to Commission

precedent, do not state a claim.

ANALYSIS AND FINDINGS

We address first the agency's dismissal of complainant's claim that the

agency's deletion of e-mail and phone messages was discriminatory and

resulted in a denial of a reasonable accommodation. A review of the

record, which contains a copy of the decision of an EEOC Administrative

Judge (AJ) dated November 1, 2000, indicates that this claim has already

been considered and decided. That is, complainant claims that an agency

official unlawfully deleted her messages which she states were intended

to relay that her job duties exacerbated her hand and foot conditions.

The issue of whether complainant's job duties were adequately modified,

as well as all communications related to the issue, were fully addressed

by the AJ in her decision and by the Commission on appeal and will not

be addressed anew.<1> Consequently, the agency's decision to dismiss

this issue was proper. 29 C.F.R. � 1614.107(a)(1).

Turning to complainant's claim that she was treated less favorably

when the agency delayed processing her claim for benefits under

OWCP, we conclude that complainant has failed to demonstrate by a

preponderance of the evidence that the agency discriminated against her.

In analyzing a disparate treatment claim under the Rehabilitation Act,

where the agency denies that its decisions were motivated by complainant's

disability and there is no direct evidence of discrimination, we apply

the burden-shifting method of proof set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village

Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68

(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).

Under this analysis, in order to establish a prima facie case,

complainant must demonstrate that: (1) she is an "individual with a

disability"; (2) she was subjected to an adverse employment action; and

(3) the circumstances surrounding the adverse action give rise to an

inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916

(7th Cir. 2001). The burden of production then shifts to the agency

to articulate a legitimate, non-discriminatory reason for the adverse

employment action. In order to satisfy her burden of proof, complainant

must then demonstrate by a preponderance of the evidence that the agency's

proffered reason is a pretext for disability discrimination. Id.

In complainant's previous case cited above, the EEOC AJ found

complainant to be an individual with a disability within the meaning

of the law, therefore, we need not analyze the issue in this decision.

Having met the first prong of her prima facie case, and as we understand

complainant's claim, complainant must now demonstrate that because she

is disabled, the agency deliberately delayed her OWCP application or,

in some manner, treated her less favorably because of her membership in a

protected class. Instead, according to complainant's affidavit testimony

offered in support of her case, other individuals within her protected

class, who also filed OWCP claims had their applications processed in

a timely manner. Therefore, by her own statements, other individuals,

arguably with disabilities, were treated fairly when they sought to

process their OWCP claims. Complainant offered no other evidence tending

to support her theory of disparate treatment on the basis of a disability.

In addition, S acknowledged that there were delays in submitting

complainant's forms because of incorrect information and incorrect coding

which in turn caused complainant's health benefits to be terminated and

a delay in awarding her benefits. S stated that corrections were made

and that the agency's personnel office was responsible for correcting

complainant's health benefit status. In response, complainant did not

establish that S's explanations were not believable or were a pretext to

hide discriminatory motives. In other words, complainant failed to come

forward with any evidence tending to show that the agency discriminated

against her because of her disability.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the agency's

final decision.

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, 2003

__________________

Date

1The Commission affirmed the AJ's finding

of no discrimination based on a disability. Vacchiano v. United States

Postal Service, EEOC Appeal No. 01A12188 (March 4, 2003).