Patricia A. Ward, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 8, 2007
0120051977 (E.E.O.C. Feb. 8, 2007)

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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2

0120051977

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036