Ethel Echols, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 29, 2009
0120071367 (E.E.O.C. May. 29, 2009)

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