Dawn D. Walker, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionMar 13, 2003
01A14419 (E.E.O.C. Mar. 13, 2003)

01A14419

03-13-2003

Dawn D. Walker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.


Dawn D. Walker v. United States Postal Service

01A14419

March 13, 2003

.

Dawn D. Walker,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southwest Area),

Agency.

Appeal No. 01A14419

Agency No. 4G-752-0238-00

DECISION

Complainant timely initiated an appeal from a final agency decision

concerning her complaint of unlawful 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., and Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

The appeal is accepted for the Commission's de novo review 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 Letter Carrier at the agency's Lake Highlands Station in

Dallas, Texas. Complainant sought EEO counseling and subsequently filed

a formal complaint alleging that she was discriminated against on the

bases of race (Black), sex (female), and disability (right leg) when she

was denied equitable overtime during January through March 2000. 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. When complainant failed to

respond within the time period specified in 29 C.F.R. � 1614.108(f),

the agency issued a final decision. Complainant's only statement on

appeal is to request a hearing before an Administrative Judge.<1>

Turning first to complainant's claims that she was treated disparately

based on her race and sex, we note that complainant must first establish

a prima facie case of discrimination. She can do this by establishing

that similarly situated individuals outside of her protected classes

were treated more favorably than she was or by setting forth some other

evidence from which a reasonable fact-finder could draw an inference of

discrimination. See Furnco Construction Corp. v. Waters, 438 U.S. 567,

576 (1978). Complainant has identified three comparative employees,

two of whom were clerks and one of whom was a carrier like complainant.

We find that the clerks were not similarly situated to complainant

because they were members of a different craft and had different job

responsibilities. While we further find that the named comparative

carrier was similarly situated to complainant, he was not treated more

favorably than she was insofar as he worked even less overtime during the

period in question. Complainant contends that the denial of equitable

overtime was precipitated by her going to her supervisor to discuss

a problem she was having with another employee. However, complainant

presents no evidence from which we could infer that her supervisor's

subsequent denial of overtime was unlawfully motivated by discriminatory

animus towards her race or sex. Accordingly, we conclude that complainant

has failed to establish a prima facie case of race or sex discrimination.

We turn now to complainant's claim of disability discrimination.

Under the Commission's regulations, an agency is required to make

reasonable accommodation to the known physical and mental limitations of

a qualified individual with a disability unless the agency can show that

accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o) and

(p). As a threshold matter, complainant must establish that she is an

"individual with a disability." An individual with a disability is one

who (1) has a physical or mental impairment that substantially limits one

or more major life activities, (2) has a record of such impairment, or (3)

is regarded as having such an impairment. Major life activities include,

but are not limited to, caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working.

Sitting, standing, lifting, and reaching are also recognized as major

life activities. Interpretive Guidance on Title I of the Americans With

Disabilities Act, Appendix to 29 C.F.R. � 1630.2(i).

Complainant was working a limited duty assignment. We infer from

complainant's �limited� duty status that she incurred an on-the-job

injury. Complainant's restrictions of note were that she could not

climb, kneel, bend or stoop at all and that she could only push and

pull for two hours per day. Complainant has presented no additional

evidence regarding her limitations or whether these restrictions applied

off, as well as on, the job. Accordingly, we decline to find that the

impairment associated with complainant's right leg substantially limited

any one of her major life activities. Additionally, we conclude that the

record does not support a finding that complainant either had a record

of or was regarded as having an impairment which substantially limited

any of her major life activities. Accordingly, complainant's claim of

disability discrimination fails. Therefore, after a careful review of

the record, including arguments and evidence not specifically addressed

in this decision, we affirm the agency's final decision.

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:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

March 13, 2003

__________________

Date

1 We note that complainant does not have a right to a hearing on appeal.

29 C.F.R. � 1614.404.