0120082852
06-07-2010
Karen Wammack, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Karen Wammack,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120082852
Hearing No. 450-2007-00379X
Agency No. 4G-760-0066-07
DECISION
On June 5, 2008, complainant filed an appeal from the agency's April 30, 2008 final decision concerning an equal employment opportunity (EEO) complaint alleging 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
During the period at issue, complainant worked as a Modified Rural Carrier at the agency's Melear Station which is part of the larger Arlington, Texas Postal District. Because of medical restrictions resulting from an on-the-job injury in 1999, complainant only performed clerk duties at the Melear Station. Specifically, her duties included express mail delivery, dutch door, answering telephones, and conducting lobby "sweeps."
In early 2007, the Arlington Postal District was overstaffed by approximately twenty clerk positions and was tasked with implementing various initiatives to improve the productivity of postal operations.1 In order to comply with the relevant collective bargaining agreement, carriers performing clerk duties had to be reassigned before clerks could be involuntarily transferred or "excessed." Complainant's restrictions precluded her from performing work in the carrier craft and her on-the-job injury entitled her to benefits under the Federal Employees Compensation Act. Consequently, complainant and other modified rural carriers, were transferred into the clerk craft and then excessed. Complainant was assigned to a Modified Mail Processing Clerk position at the Wedgewood Station with a 7:00 am - 4:00 pm schedule, Sundays and Tuesdays off, and saved salary.
On May 7, 2007, complainant filed a formal EEO complaint alleging that she was discriminated against on the bases of race (white) disability, and age (54) when:
on March 3, 2007, her accommodation was rescinded and she was subjected to a hostile work environment.
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that complainant failed to prove that she was subjected to discrimination as alleged.
ANALYSIS AND FINDINGS
Initially, we find that the complaint was poorly framed when it stated that complainant's "accommodation" was rescinded. Complainant's modified rural carrier position at the Melear Station was not a reasonable accommodation within the meaning of the Rehabilitation Act. It was a rehabilitation position specifically created to accommodate complainant's restrictions consistent with the agency's obligations under the Federal Employee Compensation Act (FECA). The Rehabilitation Act does not entitle complainant to "make work" positions. Even if we assume, solely for the sake of argument, that her carrier position was a reasonable accommodation, the agency can eliminate the position as long as complainant is given another effective accommodation. In this case, she was transferred into a modified clerk position specifically designed to meet her medical restrictions. Complainant did have to travel further and she did lose her seniority when she crossed crafts. However, she did not prove, by a preponderance of the evidence that there was a vacant funded position for which she was qualified and to which she could have been reassigned which would have preserved either of those benefits. Absent evidence of such a position, we find that the agency complied with its obligations under the Rehabilitation Act to provide reasonable accommodation.
On appeal, complainant argues solely that her transfer to the Wedgewood Station was discriminatory.2 Complainant relies heavily on the Commission's decision in Pruneda v. United States Postal Service, EEOC Appeal No. 0720050014 (June 4, 2007) wherein we affirmed an AJ's finding of disability discrimination. In that decision, an AJ determined that the agency's explanations for creating a 2:30 am shift for carriers in rehabilitation positions at an agency facility in Bluebonnet, Texas was a pretext for disability discrimination. The agency's various explanations for creating the shift lacked credibility based on objective evidence in the record and complainant proved, by a preponderance of the evidence, that the real reason was to "encourage" disabled employees to retire by forcing them to report to work at 2:30 in the morning.
However, there is no evidence in this record to support a conclusion that the agency did this to harm complainant or to force her into retirement. We reject counsel's claim that this case mirrors Pruneda. Clerk positions at the Melear Station were being eliminated. As a result, both limited and full duty employees were involuntarily transferred to postal facilities within the Fort Worth Area. Complainant was not required to report to work in the middle of the night. Complainant did lose her seniority rights when she crossed crafts. Seniority rights are governed by an agency's collective bargaining agreements and are not wholly controlled by management. To the extent that complainant wanted to challenge her loss of seniority, she had to do so via the grievance process.
In sum, in response to the need to reduce the number of clerks working in the Arlington Postal District, the agency complied with the collective bargaining agreement by no longer allowing complainant to remain in the carrier craft while performing clerk duties. In compliance with its obligations under FECA, the agency found a rehabilitation position for complainant in the clerk craft and transferred her into such a position. Complainant requests the Commission to find that these actions support an inference of discrimination because she was a fifty-four year old white female working in a rehabilitation position. An inference of discrimination is created when unexplained facts suggest a prohibited consideration was a factor in an adverse employment action. The facts herein have been thoroughly explained. We find that complainant has failed to establish a prima facie case of discrimination on any of her alleged bases.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the agency's final decision.
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
June 7, 2010
__________________
Date
1 In late 2006, eight Delivery Code Bar Sorter Machines were removed from the Arlington District. Between two and three employees were needed to operate each machine which accounted in part for what became an overstaffed district.
2 We consider the claim of hostile work environment abandoned in light of complainant's decision not to argue it on appeal, and the minimal evidence complainant provided to the investigator to support or develop the claim.
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0120082852
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013