01a52477
05-15-2006
Merla Guillory, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Merla Guillory v. United States Postal Service
01A52477
5-15-06
.
Merla Guillory,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52477
Agency No. 4G-770-0328-03
Hearing No. 330-A4-0077X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency discriminated against her on the
bases of race (African-American), sex (female), and disability (right
knee replacement) when:
on March 3, 2003, complainant made a written request to the Human
Resource Manager for consideration for a vacant Human Resource Specialist
position, and another employee was assigned to fill the vacant position;
on May 8, 2003, complainant received a letter changing her Labor
Distribution Code (LDC); and
on May 16, 2003, complainant received a letter rescinding the letter
of May 14, 2003 and May 15, 2003, with a job offer to a Supervisor
Distribution Operation assignment in the Attendance Control Office.
Following an investigation, complainant, who held a modified job in the
Human Resources Department, requested a hearing before an Administrative
Judge (AJ). The AJ found that although complainant established a prima
facie case of race and sex discrimination and he assumed arguendo that
complainant established a prima facie case of disability discrimination as
to all issues, the agency had articulated legitimate nondiscriminatory
reasons for its actions. Specifically, the agency indicated that
complainant was reassigned from the Human Resources Department, and
letters were rescinded in order to comply with a national policy that
attempted to get rehabilitation employees in budgeted positions that
matched their restrictions. The AJ noted that while complainant had
requested to be placed in one of the vacant Human Resources positions,
which was ultimately filled by a white male, these positions did not fit
her medical restrictions. The AJ found that even though complainant
wanted a position in Human Resources, she was accommodated by being
provided a position within her work limitations that included an increase
in salary. The AJ found that complainant failed to show that the agency's
articulated reasons were pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order.
The Commission finds that complainant has not shown, and the evidence
does not show that discrimination occurred. The record shows that
complainant's reassignment from Human Resources was the result of
the National Reassessment Initiative and affected approximately 1000
employees. Further, the position in Human Resources that complainant
wanted but did not apply for, required that the selectee be able to move
heavy audio and video boxes. Clearly, this was not within complainant's
restrictions which included �intermittent sitting - 5 hours, intermittent
walking - 3 hours, lifting up to 10 lbs, intermittent twisting - 1
hour, intermittent standing - 2 hours, no bending, squatting, climbing,
kneeling.� The agency maintained that because the Human Resources job did
not fit within her medical restrictions, complainant was reassigned to a
supervisory position that worked within in limitations. The Commissions
finds that although the supervisory position was not complainant's first
choice, complainant is not entitled to the reasonable accommodation of
her choice, but only to the accommodation that allows her to perform
the essential functions of a position. See EEOC Enforcement Guidance
on Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, Question 9 (rev. October 17, 2002).
With respect to the LDC code change, the record shows that the code was
changed for accounting purposes only and did not affect her position
title, task assignments or any other element of her modified position.
Finally, the record reveals that the May letters were rescinded because
the two earlier positions offered to complainant did not fit within
her restrictions. The Commission finds that complainant failed to show
that the agency's articulated reasons were pretext for discrimination.
Accordingly, the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (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
____5-15-06______________
Date