05a30815
07-09-2003
Sharon A. Nowlin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sharon A. Nowlin v. United States Postal Service
05A30815
07-09-03
.
Sharon A. Nowlin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A30815
Appeal No. 01A22646
Agency No. 1H-301-0014-98
Hearing No. 110-A1-8295X
DECISION ON REQUEST TO RECONSIDER
On May 22, 2003, Sharon A. Nowlin (complainant) timely initiated a
request to the Equal Employment Opportunity Commission to reconsider
the decision in Sharon A. Nowlin v. John E. Potter, Postmaster General,
United States Postal Service, EEOC Appeal No. 01A22646 (April 23, 2003).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision where the party demonstrates that:
(1) the previous decision involved a clearly erroneous interpretation of
material fact or law; or (2) the decision will have a substantial impact
on the policies, practices, or operation of the agency. 29 C.F.R. �
1614.405(b).
At issue herein is complainant's formal complaint filed on April 13,
1998, claiming discrimination based on disability (chronic Achilles
tendinitis) when she was removed from the agency on February 23, 1998.
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). The AJ conducted a hearing and issued a
decision on March 13, 2002, finding that the agency did not discriminate
against complainant. The agency agreed to implement the AJ's decision,
and complainant filed an appeal. The previous decision affirmed the
agency's final order.
In 1991, complainant sustained an on-the-job injury to her ankle and,
after showing that she was permanently disabled, was placed on leave
and afforded workers' compensation benefits. Based on an investigation
by the agency showing complainant engaged in work beyond her medical
restrictions at a private business owned by her fiancee, the agency
stopped all benefits and terminated her for misconduct. Complainant
acknowledged that she visited his business but contended that she did
no work and was not paid.
The AJ held that complainant failed to show that she was a "qualified
individual with a disability."<1> Further, the AJ stated that, even
assuming complainant was a qualified individual with a disability,
the agency articulated a legitimate, nondiscriminatory reason for
its action, i.e., complainant was terminated for misconduct, and in
response, complainant did not demonstrate that the agency's reason for
its action was not true and a pretext, or a sham, for discrimination.
In her request for reconsideration, complainant repeats her argument that,
while she visited her fiancee's business and may have signed a voucher or
answered the telephone on occasion, she did not work there nor was she
paid for any work. In addition, she asserted that the agency routinely
terminated employees with disabilities, although she presented no proof
or evidence in support of this statement, except to contend that it was
"common knowledge."
In order to merit the reconsideration of a prior decision, the requesting
party must submit written argument that tends to establish that at least
one of the criteria of 29 C.F.R. � 1614.405(b) is met. The Commission's
scope of review on a request for reconsideration is narrow and is not
merely a form of a second appeal. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS, EEOC
Request No. 05900850 (September 7, 1990). After a review of the file and
complainant's request, the Commission finds that the request does not
meet the regulatory criteria of 29 C.F.R. � 1614.405(b), in that, the
request does not identify a clearly erroneous interpretation of material
fact or law, nor does it show that the underlying decision will have a
substantial impact on the policies, practices or operation of the agency.
Even if we assume, without so finding and for purposes of analysis only,
that petitioner is a qualified individual with a disability, she has not
met her burden to demonstrate that the agency's actions were not true
and were based on her disability. Further, she has not shown that she
was treated differently than similarly situated employees outside of
her protected group who engaged in similar misconduct.<2>
After a review of the 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. 01A22646 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on a request for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON 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
___07-09-03_______________
Date
1One claiming protection under the Rehabilitation Act must show that s/he
is an individual with a disability as defined therein. An individual
with a disability is one who has, has a record of, or is regarded as
having, a physical or mental impairment that substantially limits one
or more major life activities. 29 C.F.R. �1614.203(a)(1). Major life
activities include caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. �1614.203(a)(3). Complainant must also show that she is
a"qualified" individual with a disability within the meaning of 29
C.F.R. � 1630.2(m). The term a �qualified individual with a disability,�
with respect to employment, is defined as a disabled individual who,
with or without a reasonable accommodation, can perform the essential
functions of the position held or desired. 29 C.F.R. � 1630.2(m).
2Complainant's contention that the law required the agency to replace
her with a person with a similar disability is incorrect and makes
little sense. Also, she misreads the AJ's decision, in that, he did
not find that she was not an employee of the agency, only that she was
not an individual with a disability.