0120064630
03-28-2008
Terri L. Cole, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Terri L. Cole,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200646301
Agency No. 4A070003806
Hearing No. 530200600152x
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 20, 2006, final decision concerning
her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant worked as a City Carrier in Haskell, New Jersey. She filed
a formal complaint on January 19, 2006, claiming discrimination based
on disability (herniated disk) when she was not given work within her
medical restrictions from October 19, 2005, through January 11, 2006.2
After an investigation, complainant requested a hearing, but she withdrew
her request, and the EEOC Administrative Judge remanded the matter to
the agency for issuance of a final agency decision (FAD).
The record reveals that complainant had been assigned to limited
duty until October 13, 2005, when she provided a CA-17 form with
medical restrictions to her managers that substantially curtailed her
ability to perform her job duties. In its FAD, the agency found that
complainant did not establish a prima facie case of discrimination,
and, even if she had done so, it determined that it articulated a
legitimate, nondiscriminatory reason for its actions. Specifically,
two Postmasters from two different facilities testified that there
was no work available within her limitations within the carrier craft.
The agency then found that complainant did not demonstrate pretext.3
Moreover, inasmuch as complainant asserted that the agency failed to
provide her with a reasonable accommodation, the agency indicated that
complainant's medical restrictions were non-specific as they related
to her job duties, and there were no available positions in which she
could perform that would not potentially cause re-injury.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, 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.4
Accordingly, the agency's decision is affirmed.
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
___03-28-2008_______________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 We assume without finding, for the purposes of analysis only, that
complainant is an individual with a disability as alleged.
3 The agency is reminded that to establish a prima facie case of
discrimination, a complainant need only present evidence which, if not
rebutted, would support an inference that the agency's actions resulted
from discrimination. Swierkiewica v. Sorema, 534 U.S. 506 (2002);
see O'Connor v. Consolidated Coin Caters Corp., 517 U.S. 308 (1996);
Enforcement Guidance on O'Connor v. Consolidated Coin Caters Corp.,
EEOC Notice No. 915.002, n. 4 (September 18, 1996).
4 In a grievance resolution, the agency agreed that complainant would
be re-evaluated by the medical unit. Complainant retired on disability
in April 2006.
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0120064630
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064630