Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 19, 2013

0120120487 (E.E.O.C. Sep. 19, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120120487

Hearing No. 480-2010-00645X

Agency No. 4F-913-0039-09

DECISION

On October 22, 2011, Complainant filed an appeal from the Agency’s October 11, 2011 final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Part-Time
Flexible Carrier at an Agency station in Van Nuys, California. On May 9, 2009, Complainant
filed an EEO complaint alleging that the Agency discriminated against her on the bases of race
(African-American), sex (female), color (Black), disability, and age (54) when payment for
sick leave she took in March 2008, was delayed until May 2008, and since May 2008,
Complainant was not allowed to return to work.

At the conclusion of the investigation of the accepted issues, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to request a hearing before an
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EEOC Administrative Judge (AJ).1

Complainant requested a hearing, but the AJ denied the
hearing request on the ground that Complainant failed to cooperate and prosecute her case.
The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS

Claim #1 (Delayed Payment)

According to management, Complainant’s request for 80 hours of sick leave was denied due to
insufficient medical documentation supporting the request. Complainant filed a grievance
which was resolved in her favor, and she received payment. Complainant has adduced no
evidence that her race, color, sex, disability or age were factors in the delay.

Claim #2 (Denied Work)

Management offered Complainant a limited duty assignment in May 2008. Complainant
claimed that she could not do the work and would only accept the offer pending
“modification.” Management believed the assignment was consistent with Complainant’s
restrictions, but because she declined it, she was not scheduled to work. This is a legitimate,
nondiscriminatory reason for the Agency’s actions. Complainant has adduced no evidence that
would support the conclusion that the Agency’s reason for its action is a pretext designed to
conceal discriminatory animus.

To the extent that this can be construed as a denial of reasonable accommodation claim,
Complainant did not prove there was a vacant funded position for which she was qualified and
to which she could have been assigned. Thus, we conclude she was not a qualified individual
with a disability. We note that the Rehabilitation Act does not require an Agency to create a
job or to modify a job so as to eliminate some or all of its essential functions. The Agency
offers limited duty positions consistent with its obligations under workers’ compensation
statutes. If Complainant was dissatisfied with her limited duty assignment, her proper recourse
was to the Department of Labor’s Office of Workers’ Compensation Programs.

CONCLUSION

For the foregoing reasons, the Agency’s final decision is AFFIRMED.

1The Agency dismissed a third claim alleging that management provided false information in
connection with a workers’ compensation claim. We decline to disturb the dismissal.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 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 77960, Washington, DC 20013. 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

(S0610)
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

(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
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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

September 19, 2013
Date