01A05860
09-23-2002
Ramona Powell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ramona Powell v. United States Postal Service
01A05860
September 23, 2002
.
Ramona Powell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05860
Agency No. 4G-770-0419-99
Hearing No. 330-A0-8110X
DECISION
Complainant timely initiated an appeal from a final agency action
concerning her complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was
employed in a limited duty position as a Modified Distribution Clerk
at the agency's facility in Port Arthur, Texas. Complainant sought EEO
counseling and subsequently filed a formal complaint on August 3, 1999,
alleging that she was discriminated against on the basis of disability
(Bilateral Carpal Tunnel Syndrome, Lower Back, and Left Leg) when on
April 29, 1999, her supervisors refused to allow her to work within her
medical restrictions.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
finding no discrimination. The AJ found that there was conflicting
evidence within the record as to whether complainant was permitted to
move around during her assignment. In her finding, the AJ determined
that the complaint involves the agency's adherence to the Department of
Labor's findings. Therefore, the AJ concluded that the Department of
Labor had sole jurisdiction of the matter and that the case was improperly
before the Commission. Accordingly, the AJ recommended that the agency
issue a final decision finding no discrimination.
The agency's final action implemented the AJ's decision. This appeal
followed without comment from either party.
The record indicates that, due to her medical limitations, complainant
was unable to perform her regular duties as a city carrier. Therefore,
the agency provided complainant a reasonable accommodation in the
form of a reassignment to a limited duty position in December 1999.
Complainant filed her EEO complaint when on January 29, 1999, her
supervisors ordered her to sit in a storage room and instructed her that
she was to stay in that room and continue to sit at a table. She alleged
that she was not permitted to get up and walk around as required per her
medical restrictions. She averred that she informed them that their
instruction was in violation with her medical restrictions related
to her Bilateral Carpal Tunnel Syndrome. Upon review, the Commission
finds that complainant is alleging that the agency failed to provide her
with a reasonable accommodation due to the supervisors' instructions.
Accordingly, contrary to the AJ's conclusion, we find that complainant
has alleged a violation of the Rehabilitation Act which is properly
before the Commission.<1>
Accordingly, the agency's final action is vacated, and the complaint is
remanded for further processing in accordance with the order below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC
field office within fifteen (15) calendar days of the date this decision
becomes final a request for an EEOC AJ to process the remanded complaint
4G-770-0419-99. With this request the agency shall submit a copy of
the complaint file, including administrative and investigatory files,
all correspondence to and from the AJ by the parties, and this decision.
Thereafter, the AJ shall issue a decision in accordance with 29 C.F.R. �
1614.109,<2> and the agency shall issue a final action in accordance with
29 C.F.R. � 1614.110 within forty (40) days of receipt of the AJ decision.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
September 23, 2002
__________________
Date
1We note that the record is deficient and should be further developed
by complainant with respect to her coverage under the Rehabilitation
Act specifically as to her lower back and left leg conditions.
2The AJ will apply this regulation to decide whether a hearing is
appropriate.