05980420
01-30-2001
Lucy I Banks, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lucy I Banks v. United States Postal Service
05980420
January 30, 2001
.
Lucy I Banks,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05980420
Appeal No. 01960592
Agency No. 1-G-1260-93
Hearing No. 330-95-8118X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Lucy I
Banks v. United States Postal Service, EEOC Appeal No. 01960592 (January
29, 1998).<1> EEOC Regulations provide that the Commission may, in
its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
The facts of this case are set out in full in the decision of the
administrative judge (AJ), and are incorporated by reference herein.
Briefly stated, complainant, a former agency employee, sustained an
on-the-job back injury (herniated disk) in mid-1990. She stopped work
and began to receive workers' compensation benefits from the Office of
Workers' Compensation Programs. In January 1991, complainant was placed
in a limited duty position which involved sitting at a table to perform
light manual tasks at her own pace for eight hours per day. She found
that she was physically unable to perform the duties of the position for
eight hours per day. She again stopped work and again received workers'
compensation benefits. In August 1991, the agency offered complainant
a new limited-duty position which had been approved by OWCP. The new
position entailed essentially the same duties as the previous position,
but for four hours per day instead of eight. Complainant did not respond
to the job offer. OWCP contacted complainant in connection with the
job offer in September and October 1991, but again complainant did not
respond.
In November 1991, complainant's workers' compensation benefits were
stopped. OWCP subsequently determined that complainant had refused a
�genuine offer of employment.� In mid-1992, complainant was diagnosed
with depression. In November 1992, the agency called complainant in to
discuss her status. On December 22, 1992, the agency issued complainant
a notice of removal on account of her failure to accept its August 1991
job offer.
At a hearing before an EEOC administrative judge (AJ), complainant
argued that she had been treated less favorably than a non-disabled white
employee whom complainant alleged had been given adequate time off work
to recover from an on-the-job injury. The gist of complainant's argument
at the hearing, however, was that the agency should have returned her
to its rolls when her request for back surgery was approved by OWCP four
days after her removal from employment was effected.
The AJ found that complainant had not established her claims. With regard
to the claim of race discrimination, the AJ found that complainant had
not adduced sufficient evidence to sustain an inference of discrimination.
With regard to the claim of disability discrimination, the AJ found that
complainant had not established that she was a �qualified individual with
a disability� entitled to protection under the Rehabilitation Act. The AJ
noted that complainant had established the existence of a disability in
that she was substantially limited in her ability, inter alia, to walk
and lift, but found that, based on complainant's testimony regarding
her physical limitations, complainant could not perform the essential
functions of the limited-duty position with or without accommodation.
In the previous decision, the Commission affirmed the decision of the AJ.
On request for reconsideration, complainant submitted 1995 and
1996 medical reports discussing her physical and mental conditions.
In relevant part, these reports reveal that complainant cannot stand or
walk for more than two hours per day total, and cannot sit for more than
30 minutes per day total.
Complainant's request for reconsideration is DENIED. Complainant has not
established that the Commission's previous decision involved a clearly
erroneous interpretation of material fact or law or the decision will
have a substantial impact on the policies, practices or operations of
the agency.
Assuming for the sake of argument that complainant had established
coverage under the Rehabilitation Act, the agency proffered a legitimate,
non-discriminatory explanation for her removal: complainant refused a
properly made offer of employment which had been approved by OWCP.<2>
Complainant has not adduced evidence to establish that the agency removed
her for a discriminatory reason. Moreover, complainant's arguments
have focused on the fact that the agency failed to reinstate her when
she was approved by OWCP for back surgery a few days after her removal,
which she maintains is evidence that she was unable to work and should
have continued to receive workers' compensation benefits. Complainant's
argument in this regard lends further support to the finding of the AJ
that she was not a �qualified individual with disability.� Further, the
actions of the agency in this regard are a matter within the jurisdiction
of OWCP, not the Commission.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to DENY the request. The decision
in EEOC Appeal No. 01960592 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
January 30, 2001
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 29 C.F.R. Part 1614 in deciding the present
appeal. The regulations, as amended, may be found at the Commission's
website at www.eeoc.gov.
2The Commission notes that whether OWCP was correct in its assessment
of the offered position is a matter outside of the Commission's purview.