01985115
07-25-2001
Penny L. Baggett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Penny L. Baggett v. United States Postal Service
01985115
07-25-01
.
Penny L. Baggett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01985115
Agency No. 4-H-230-0204-97
DECISION
Complainant timely initiated an appeal from a May 13, 1998 final agency
decision concerning her complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq. (1994 & Supp. IV 1999) (Rehabilitation Act).<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged that she was discriminated against on the basis of her disability
(degenerative disc disease) when on March 18, 1997, her 89-day appointment
as a casual clerk was not renewed beyond March 31, 1997, and complainant
was terminated.
For the following reasons, the Commission affirms the agency's May 13,
1998 final decision.
BACKGROUND
The record reveals that complainant, a casual employee, was injured in
1987. On January 25, 1996, complainant was offered a casual appointment
with the agency. The agency's offer letter showed that complainant was
responsible for general administrative and clerical duties, including
filing and typing, and other duties as assigned within the limitations
of her 1987 injury. Complainant's limitations were, among other things,
a two hour/day walking and standing restriction, and a total restriction
in reaching above the shoulder. According to complainant's affidavit,
she worked for the agency from April 15, 1996, until March 31, 1997,
when her appointment was not renewed. An employee from the agency's
Injury Compensation Office stated that she was advised that it was not
necessary to renew complainant's appointment if she was not needed.
An employee from the personnel office stated that she was notified by
the Postmaster that he was not to renew complainant's appointment.
After timely contacting an equal employment opportunity (EEO)
counselor and filing a formal complaint in this matter, the complaint
was investigated. At the conclusion of the investigation, complainant
was provided a copy of the investigative report and advised of her right
to request a hearing before an Equal Employment Opportunity Commission
administrative judge. When complainant failed to respond to the notice
of rights within the specified time period, the agency issued a final
decision.
In its final decision, the agency concluded that complainant was not a
qualified individual with a disability and therefore was not entitled to
the protection of the Rehabilitation Act regarding the agency's failure to
renew her appointment which expired March 31, 1997. The agency did not
set out a reason for finding complainant was not a qualified individual
with a disability, but rather stated that the injury compensation office
concluded that it was not necessary to reappoint complainant to her
position if her services were not needed.
Neither party presented any arguments on appeal.
ANALYSIS
Presuming complainant was a qualified individual with a disability, she
must show a prima facie case of disparate treatment based on disability.
Complainant can do this by showing she was subjected to an adverse
employment action under circumstances giving rise to an inference of
discrimination, i.e. complainant must make a plausible showing that there
is a nexus between the disabling condition and the disputed adverse
action. See Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999);
Visage v. Department of the Air Force, EEOC Request No. 05940993 (July
10, 1995). The complainant adduced no evidence from which an inference
of discrimination could be drawn. Complainant identified no other
employees who were treated differently than she, nor did she submit
documentary evidence that would raise an inference of discrimination.
Accordingly, after a careful review of the record the Commission affirms
the agency's May 13, 1998 final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
___07-25-01_______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.