0120071074
05-08-2009
Doris J. Arnold, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Doris J. Arnold,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071074
Agency No. 4H-320-0064-06
DECISION
Complainant appeals to the Commission from the agency's decision
dated November 8, 2006, finding no discrimination. In her complaint,
complainant, alleged discrimination based on disability (hand, arm and
shoulder) and in reprisal for prior EEO activity when:
(1) On March 27 and May 3, 2006, she was sent home and not allowed to
work;
(2) On April 14, 2006, she was given a limited duty job offer that was
outside her limitations; and
(3) On April 29, 2006, she was called at home and accused of being Absent
Without Official Leave (AWOL).
After completion of the investigation of the complaint, complainant did
not request a hearing. Thus, the agency issued its decision concluding
that it asserted legitimate, nondiscriminatory reasons for its actions,
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 actions. At the relevant time period, complainant was
employed as a Sales, Service/Distribution Associate at the Fort Walton
Beach, Florida Post Office. The record indicates that complainant
previously had Rotator Cuff surgery on her right shoulder on October 19,
2004, and again on August 11, 2005. Complainant also had Carpal Tunnel
surgery on her left hand on January 3, 2006.
With regard to claim (1), complainant's first supervisor (S1) stated that
on March 27, 2006, complainant returned to work after having been off
for her January 3, 2006 surgery. S1 stated that complainant was sent
home because she did not have medical clearance to return to work after
her surgery. Complainant's second supervisor (S2) stated that May 3,
2006, was complainant's non-scheduled day.
With regard to claim (2), S2 stated that complainant had been on a
limited duty assignment since his arrival in the office in July 2005,
and when complainant actually came to work, she was accommodated within
her restrictions, i.e., lifting up to 20 pounds with her right arm due
to a shoulder injury. Complainant's limited duties were basically those
of a greeter, i.e., stand near the front door and greet customers as they
enter and direct them to the services they need; assist customers at the
self-service center; answer the phone; and pull carrier vehicle keys away
along with accountable mail with certified letters. All of these duties
were within complainant's restrictions. S2 indicated that on April 14,
2005, when complainant came to work, she failed to bring in updated
medical information; thus, he wrote her an offer based on her prior
limitations. Complainant does not indicate why this offer was beyond
her restrictions nor is there any evidence in the record to show that
she provided the requested updated medical documentation at that time.
With regard to claim (3), S2 stated that he called complainant on April
29, 2006, and told her that she was being placed on AWOL because she was
not at work as scheduled and she had not called to report an unscheduled
absence.
Assuming (without deciding) that complainant was an individual with a
disability, the Commission finds that complainant failed to show that
she was denied a reasonable accommodation or that any agency actions
were motivated by discrimination. Complainant does not allege that
she was required to perform her duties beyond her medical restrictions.
With regard to her claim of harassment, we find that complainant failed
to establish the severity of the conduct in question or that it was
related to any protected basis of discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 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
5/8/09
__________________
Date
2
0120071074
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013