0120062549
11-13-2006
Carmen I. Molina, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carmen I. Molina,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200625491
Agency No. 1A102003405
DECISION
Complainant appeals to the Commission from the agency's decision dated
February 24, 2006, finding no discrimination. In her complaint,
complainant, a Mail Handler, at the agency's Morgan Processing &
Distribution Center, alleged discrimination based on disability
(Fibromyalgia/Asthma) when beginning on May 25, 2005, she was sent home
without being permitted to work a full eight hours.
After completion of the investigation of the complaint, complainant did
not request a hearing, and then, the agency issued its decision concluding
that it asserted legitimate, nondiscriminatory reasons for its action,
which complainant failed to rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination,
finds that the agency has articulated legitimate, nondiscriminatory
reasons for the alleged action. Complainant's supervisor stated that
during the relevant time period, there was inadequate work within her
light duty limitations. The supervisor indicated that there was an
insufficient volume of mail in the area in which complainant was working
to keep both regular and light duty employees occupied. He stated that
all light duty assignments were given on a case by case basis and based
on the limitations of the employee and available work. The record shows
that complainant returned to work on some dates following May 25, 2005.
After a review of the record, the Commission finds that the agency
has articulated legitimate, nondiscriminatory reasons for the alleged
incident and that complainant failed to show that the agency's reasons
were pretext for discrimination. Furthermore, the Commission finds that
complainant was not denied a reasonable accommodation. The agency stated
and we agree that complainant failed to identify any specific light duty
jobs that were available but which she was denied during the relevant
time period at issue. After a review of the record, the Commission finds
that complainant failed to show, by a preponderance of the evidence that
she was discriminated against. The Commission does not address in this
decision whether complainant is a qualified individual with a disability.
Accordingly, the agency's decision finding no discrimination 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
November 13, 2006
__________________
Date
1 Due to a new data system, your case has been redesignated with the
above referenced appeal number.
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0120062549
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036