Mable L. Carnahan, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 14, 2002
05990788 (E.E.O.C. Mar. 14, 2002)

05990788

03-14-2002

Mable L. Carnahan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Mable L. Carnahan v. United States Postal Service

05990788

March 14, 2002

.

Mable L. Carnahan,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Request No. 05990788

Appeal No. 01972163

Agency No. 5D-1945-92

Hearing No. 340-95-3394X

DENIAL OF REQUEST FOR RECONSIDERATION

Mable L. Carnahan (complainant) timely initiated a request to the Equal

Employment Opportunity Commission (EEOC or Commission) to reconsider

the decision in Mable L. Carnahan v. United States Postal Service,

EEOC Appeal No. 01972163 (May 14, 1999). Complainant alleged that she

was discriminated against on the bases of race (Black), sex (female),

reprisal (prior EEO complaints), and disability (asthma, sinusitis, and

congestive heart failure) when: (1) her step increases were deferred in

or about 1992; and (2) the agency failed to properly process her claim

for disability retirement which resulted in the Office of Personnel

Management's (OPM) initial denial of her application on April 9, 1992.

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).

In the previous decision, the Commission found that the AJ's recommended

decision properly analyzed complainant's complaint as a disparate

treatment claim. The Commission concluded that, in all material respects,

the AJ accurately set forth the facts giving rise to the complaint and

the law applicable to the case. Regarding complainant's step increase,

we found that the agency rebutted any prima facie case explaining that

complainant was denied step increases in accordance with the agency policy

because she had been in a LWOP status for more than 13 weeks during the

waiting period for receipt of a periodic step increase. We concluded

that complainant failed to establish a prima facie case of race or sex

discrimination. We also found that complainant's medical review was not

the only one delayed by the first Medical Officer but all medical files

assigned to the officer for review were delayed. Any prima facie case

that complainant may have established was rebutted by this evidence.

Finally, we found that the AJ correctly determined that complainant was

not a qualified person with a disability, in that the record revealed that

complainant was never capable of performing the essential functions of

her position as a postal clerk with or without accommodations. Therefore,

we adopted the AJ's decision and AFFIRMED the final agency decision.

In the instant request for reconsideration, complainant asserts that

she submitted to the Personnel Assistant her application for disability

retirement, medical reports from her physician and voluminous medical

records as appropriate documentation in support of her claim to establish

a service deficiency or a disabling medical condition. Complainant

also asserts that the Personnel Assistant stated that she had too many

records and refused to accept the medical records for submission with

complainant's disability retirement application. Further, complainant

asserts that her disability retirement application was delayed by the

improper processing and that this delay was malicious and intentional.

However, complainant raises no argument or evidence that was not

previously considered in the prior decision. Having considered

the evidence of the record and complainant's submissions, we find,

as we did in the prior decision, that the evidence does not show any

inference of discrimination against complainant's race or sex or because

of reprisal. We also find that complainant was not qualified individual

with a disability. A qualified individual with a disability is one

who can perform the essential functions of the job with or without

an accommodation. See Bradley v. U.S. Postal Service, EEOC Appeal

No. 01962747 (October 22, 1998). The record reveals that complainant

failed to show that the appellate decision involved a clearly erroneous

interpretation of law or would have a substantial impact on the policies,

practices, or operations of the agency.

After a review of 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. 01972163 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

March 14, 2002

__________________

Date