0120071666
05-28-2009
Loretta M. Jarman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Loretta M. Jarman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071666
Agency No. 4C-280-0108-06
DECISION
Complainant appeals to the Commission from the agency's decision
dated January 30, 2007, finding no discrimination. In her complaint,
complainant alleged discrimination based on disability (degenerative
joint disease) when on May 23, 2006, she was not given a limited-duty
job offer at the Havelock Post Office.
After completion of the investigation of the complaint, complainant did
not request a hearing. The agency then issued its decision concluding
that it asserted legitimate, nondiscriminatory reasons for its action,
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 action. The record indicates that at the time of the
relevant incident, complainant was employed as a Part Time Flexible Sales,
Service/Distribution Associate at the agency's Havelock (North Carolina)
Post Office. Her position required her to lift up to 70 pounds; box
post office box mail; case letters; write second notices on parcels and
certified mail; serve customers at the front window; work on passports;
and run the CSBCS machine. The record also indicates that complainant's
medical condition worsened and on December 30, 2005, she filed a Notice
of Occupational Disease and Claim for Compensation due to cervical disk
disease.
The record indicated that during the relevant time period at issue,
complainant was restricted to lifting or pulling up to 10 pounds, sitting
1 - 8 hours, standing 6 - 8 hours, walking, kneeling, bending, stooping,
twisting, pushing, pulling, and fine manipulation 1 - 3 hours, per day
intermittently. The Postmaster stated that due to these restrictions,
complainant was not able to perform the essential functions of her job.
Complainant claimed that she could perform her job with her coworker's
help in lifting the packages over 10 pounds. However, the Postmaster
indicated that as most of the packages were over 10 pounds, complainant
could not be assisted on a daily basis.
The Postmaster stated that complainant was accommodated with three
limited duty assignments with duties within her medical limitation.
Specifically, on March 23, 2006, complainant accepted a Modified Limited
Duty Assignment as a Custodian with additional duties that included
delivering Express Mail, and working box and nixie mail. On May 23,
2006, complainant accepted another Modified Limited Duty Assignment
as a Lobby Director at the New Bern Post Office. On August 28, 2006,
complainant accepted her third Modified Limited Duty Assignment as a Clerk
(Modified) at the Havelock Post Office.
Assuming (without deciding) that complainant was an individual with
a disability, we find that complainant has not shown that the May 23,
2006 limited duty offer was in violation of her medical restrictions.
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., getting another
clerk's assistance for lifting packages over 10 pounds. Complainant has
not shown that there was a vacated, funded position with duties within
her medical restrictions at the Havelock Post Office. Also, we find
that complainant has not shown that the limited duty offer on May 23,
2006, was motivated by disability 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
5/28/09
__________________
Date
2
0120071666
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013