Danielle Blakey, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 9, 2004
01A35048 (E.E.O.C. Nov. 9, 2004)

01A35048

11-09-2004

Danielle Blakey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Danielle Blakey v. United States Postal Service

01A35048

11-09-04

.

Danielle Blakey,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A35048

Agency No. 1-G-787-0007-02

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 Part Time Flexible Clerk at the agency's Austin, Texas

Facility. Complainant sought EEO counseling and subsequently filed a

formal complaint on March 5, 2002, alleging that she was discriminated

against on the basis of disability (flat feet) when:

(1) On November 21, 2001, she was informed that she was being sent for

a second opinion;

On November 27, 2001, the processing of her FMLA request was purposefully

delayed and she was charged with AWOL; and

She was subsequently issued a Notice of Removal dated April 19, 2002.

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. Complainant

initially requested a hearing before an Administrative Judge, but

later withdrew this request and requested that the agency issue a final

decision.

In its FAD, the agency concluded that complainant failed to establish

a prima facie case of disability discrimination in that she failed to

show that she was �disabled� as defined by the Rehabilitation Act.

Even assuming arguendo that complainant was disabled, the agency found

that it articulated legitimate nondiscriminatory reasons for its actions

which were not shown to be pretextual.

On appeal, complainant contends that the record evidence establishes

that she suffers from a disabling condition (flat feet) and that the

agency failed to reasonably accommodate her disability.<1>

We find that complainant has failed to meet her burden of proof. To

establish a claim of disability discrimination under a disparate treatment

and/or failure to accommodate theory complainant must demonstrate that:

(1) she is an individual with a disability as defined in 29 C.F.R. �

1630.2(g); (2) she is a �qualified individual with a disability�

as defined in 29 C.F.R. � 1630.2(m); and (3) she was subjected to

an adverse personnel action under circumstances giving rise to an

inference of disability discrimination and/or denied a reasonable

accommodation. Carney v. Federal Deposit Insurance Corporation, EEOC

Appeal No. 01986113 (August 3, 2000) (citing Prewitt v. United States

Postal Service, 662 F.2d 292 (5th Cir. 1981)).

Herein, assuming, arguendo, that complainant is an individual with a

disability as defined by the Rehabilitation Act, we nonetheless find that,

as to the basis of disability, complainant failed to demonstrate by a

preponderance of the evidence that discrimination occurred. In order to

trigger the accommodation requirement, a nexus between complainant's

asserted disability and the agency's action must be shown. Here,

complainant failed to provide sufficient evidence to show that the

complained of action was based on disability discrimination.

The record evidence revealed that complainant voluntarily entered

into a last chance agreement on October 4, 2001, in which she was

required to maintain satisfactory attendance as defined as no more

than three unscheduled absences per quarter and no absences without

leave, for a period of eighteen months. Notwithstanding this agreement,

complainant did not maintain satisfactory attendance and on April 19,

2002, the agency issued a notice of removal for violating the terms of

the last chance agreement. In the notice, the agency cited 22 unscheduled

absences including unscheduled sick leave, unscheduled leave without pay,

and absent without leave, for the period January 1, 2002 to April 12,

2002. While complainant contends that her unscheduled absences were the

result of the agency's failure to accommodate her disability, complainant

failed to provide sufficient evidence to support this assertion.

The record evidence established that as an accommodation for her foot

condition, complainant requested a temporary light duty assignment for the

period January 28, 2002 to February 28, 2002. In support of this request,

complainant provided medical documentation which showed that she could

work an 8-hour day, but could not walk or stand for more than 4-hours in

an 8-hour day. The agency approved complainant's request for a temporary

light duty assignment for the period requested with walking and standing

restrictions as noted in the medical documentation. Notwithstanding

the accommodation provided, complainant did not maintain satisfactory

attendance during this period. Complainant's unscheduled absences during

this period, belies complainant's claim that her unscheduled absences

were the result of the agency's failure to accommodate her purported

disability since the unscheduled absences occurred during the period

the accommodation requested was provided.

Complainant also requested leave protected by the Family Medical

Leave Act (FMLA). To support this request, complainant submitted

medical documentation showing that she has an �arch problem� in her

feet which prevents standing, could last for one year, and may require

her to be off from work intermittently up to 1-2 days every week. The

documentation further indicated that complainant's complaints are not

considered a �serious health condition.� The agency determined that the

medical documentation was not sufficient to establish the existence of

a FMLA condition, and a result, the agency referred complainant for a

2nd medical evaluation. The agency provisionally approved complainant's

request for FMLA protected leave pending the results of the second medical

evaluation. The second medical evaluation determined that complainant's

foot condition did not warrant FMLA protection. Complainant was provided

an opportunity to challenge the 2nd medical evaluation but failed to

do so. Hence, the leave complainant took between November 16, 2001 to

April 16, 2002 was not protected by FMLA and complainant was charged

with unscheduled absences including absent without leave.

We find that the evidence is insufficient to establish that complainant

was denied a reasonable accommodation based on her purported disability of

�flat feet� and insufficient to establish a nexus between the complained

of actions and complainant's purported 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 FAD.

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

___11-09-04_____________

Date

1 While complainant contends on appeal that

she suffered from depression which was the basis for her EEO filing,

the record evidence establishes that complainant's asserted disability

was �flat feet.�