0120051977
02-08-2007
Patricia A. Ward, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patricia A. Ward,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200519771
Agency No. 1G708003603
DECISION
Complainant appeals to the Commission from the agency's decision dated
December 3, 2004, finding no discrimination. In her complaint, dated
October 28, 2003, complainant, a Mail Processing Clerk on limited duty at
the agency's Baton Rouge, Louisiana Processing and Distribution Center,
alleged discrimination based on sex (female), age (DOB: 12/7/54),
disability (lumbar strain/bulging disk, anxiety, and stress), and in
reprisal for prior EEO activity when on August 26, 2003, she was issued
a seven-day suspension for failing to be regular in attendance and
unscheduled absences. After completion of the investigation of the
complaint, the agency issued its decision finding no discrimination
concerning the complaint.
After a review of the record, we agree with the agency that complainant
was not discriminated against when she was issued the alleged suspension.
Complainant's supervisor stated that complainant was issued the alleged
suspension because she had 21 unscheduled absences, i.e., Leave Without
Pay, between June 26 and August 8, 2003. Also, complainant was previously
issued a disciplinary action for the same offense on June 25, 2003.
Complainant does not dispute the foregoing explanations. The record
indicates that complainant did not serve the alleged suspension at issue
due to an Arbitrator's decision. Complainant has failed to show that
the suspension was motivated by discrimination.
We also agree with the agency's finding that complainant was accommodated
for her condition. The supervisor stated that complainant's old desk was
deemed to be unsafe and was removed. He stated that upon complainant's
request, he provided her with an elevated table, an elevated chair,
a book stand podium and a foot stand. Furthermore, both complainant's
physician and the agency Physical Therapist, who conducted a Worksite
Task Analysis Evaluation, determined that complainant's worksite was
equivalent to the table and chair to which she had become accustomed
for nine years and was suitable for her restrictions. EEOC Enforcement
Guidance: Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act, EEOC Order No. 915.002 (October 17, 2002) provides
that the agency is not obligated to provide complainant with her chosen
accommodation; rather the agency has the ultimate discretion to choose
between effective accommodations. Complainant has not identified any
specific accommodations other than merely claiming that the agency's
accommodations were less adequate. Furthermore, we find that complainant
has not shown that the accommodations were somehow inadequate. We do not
address in this decision whether complainant is a disabled individual.
Based on the foregoing, the Commission finds that complainant was not
discriminated against with regard to the alleged suspension, and she
was not denied a reasonable accommodation. After a review of the record
in its entirety, including consideration of all statements submitted on
appeal, the agency's final decision is AFFIRMED.
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
February 8, 2007
__________________
Date
1 Due to a new data system, your case has been redesignated with the
above referenced appeal number.
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0120051977
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036