0120071367
05-29-2009
Ethel Echols, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ethel Echols,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071367
Hearing No. 490-2006-00167X
Agency Nos. 1H-381-0019-06 & 1H-381-0052-04
DECISION
Complainant appeals to the Commission from the agency's decision dated
December 11, 2006, finding no discrimination. In her complaints,
complainant alleged discrimination based on race (African-American),
sex (female), and disability (hand, elbow and shoulder) when:
(1) On June 24, 2004, she was reassigned from her carrier craft position
as a permanent rehabilitation employee at the Memphis, Tennessee
Processing and Distribution Center (P&DC) and excessed to the Memphis
Bulk Mail Center (BMC) on tour 1 with no restrictions despite her medical
limitations;
(2) On July 20, 2004, the medical limitations on her PS Form CA-17 were
ignored and she worked outside of her limitations;
(3) On August 11, 2005, she was required to work outside of her medical
limitations while on limited duty; and
(4) On January 12, 2006, she was sent home and placed in a non-duty
status after she rejected a modified job offer she believed violated
her medical restrictions.
After completion of the investigation of the complaints, complainant
requested a hearing but later withdrew the request. The agency
then 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 incidents. During the relevant time period,
complainant was employed as a Mail Processing Clerk.
With regard to claim (1), the agency stated that complainant was
previously reassigned from the letter carrier craft to the clerk craft
in 1998, with her seniority date at the Memphis P&DC established at
that time (9/12/98). The agency indicated that due to the Memphis
P&DC excessing employees, complainant was excessed to the Memphis BMC
as a Mail Processor in accordance with the union agreement and she was
notified of this on April 14, 2004. The agency also indicated that the
procedure for excessing was based on seniority and complainant was #814
on the seniority list of the 816 Full Time Clerks at the Memphis P&DC.
With regard to claim (2), the agency stated that during the relevant time
period, complainant was assigned to work the limited duty conveyor belt
at the Memphis BMC. The record contains complainant's CA-17 dated July
15, 2004, indicating complainant's physical limitations which included,
among other things, no fine manipulation, no reaching above shoulders,
and no lifting/carrying over five pounds. Complainant claimed that on
the incident date, she was: sorting mail; placing letter mail in trays;
placing magazines in small tubs that were located on both sides of her;
pulling mail from conveyor belt; throwing large envelopes, small parcels,
and magazines into five different tubs (weighing 80 pounds each) for
eight hours per day. However, the agency denied that complainant was
required to perform her duties beyond her medical limitations or that they
were aware of her performing any duties beyond her medical limitations.
The agency noted that complainant worked the same duties for two months,
but she specifically indicated that the purported incident occurred
only on July 20, 2004. The agency stated that complainant's limited
duty assignment during the relevant time period was properly reviewed
by the Department of Labor based on the medical evidence.
Complainant claimed that she should have been assigned back into the
Lobby Information Booth as a City Letter Carrier wherein which she
was placed since 1998, for 5-6 years prior to June 2004. The record
indicates that while complainant was stationed in the Lobby Information
Booth, her duties included: verifying identification/purpose of visit
for person(s) entering the building; pressing doorbell type buzzer
for entrance through glass double doors; utilizing telephone to advise
office personnel of visitors; providing customer information; handing out
personnel information to include brochures relating to employee benefits;
handing out employment application cards; and preparing mailings to
employees and/or applicants. However, the agency stated that there was
not eight hours of work for complainant at the relevant time. The agency
also stated that the foregoing position no longer existed. In fact,
complainant acknowledged that the facility: put telephones outside
the booth; posted signs telling visitors where to go to get badges to
gain entrance and what numbers to call to gain entrance; and placed a
camera at the booth so employees at Box Mail Section could observe who
was at the Information Booth. The agency, undisputed by complainant,
noted that complainant subsequently exercised her retreat rights back
to the Memphis P&DC on August 30, 2004.
With regard to claim (3), the agency indicated that during the relevant
time period, complainant was assigned to work Quality Control and
assisting in the manual unit. Despite complainant's claim, the agency
stated that the duties of this assignment did not include her physical
restrictions at that time, i.e., casing and fine manipulation, rather
it included fingering (riffling) letter mail and pulling out letters
from a tray of letters.
With regard to claim (4), the agency stated that during the relevant
time period, complainant refused to sign a modified job assignment
dated January 5, 2006, and submitted a sick leave slip and went home.
The agency indicated that the duties of this modified assignment did
not violate complainant's medical restrictions, i.e., no casing or fine
manipulation. The duties included Culling letters (OCR) waist level,
six hours average time spent, and Facing letters (OCR) waist level,
two hours average time spent.
Upon review, we find that complainant failed to show that she was denied
a reasonable accommodation or that any agency actions were motivated by
discrimination. Despite her claim, it is noted that complainant was not
entitled to an accommodation of her choice, i.e., working in the Lobby
Information Booth, a position which no longer existed. It appears that
the agency clearly accommodated complainant's limitations on numerous
occasions and despite her claim, she was not required to perform her
duties beyond her medical limitations.
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
5/29/09
__________________
Date
2
0120071367
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013