01A32745
07-23-2004
Renee L. Blanding, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Renee L. Blanding v. United States Postal Service
01A32745
July 23, 2004
.
Renee L. Blanding,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A32745
Agency No. 1H-304-0062-00
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission AFFIRMS the agency's
final decision.
The record reveals that during the relevant time, complainant was
employed as a modified mail handler at the agency's Atlanta, Georgia
Bulk Mail Center (Atlanta BMC). Complainant sought EEO counseling and
subsequently filed a formal complaint on October 27, 2000, alleging that
she was discriminated against on the bases of race (African-American),
sex (female), disability, age (D.O.B. 12/03/59), and in reprisal for
prior EEO activity when:
(1) on August 7, 2000, she received a limited duty job offer with a
change in reporting time and off days;
on August 22, 2000, she was told that she would have to work within
her limitations;<1> and
on October 3, 2000, she was told to move her vehicle from a handicapped
parking space.<2>
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency found that complainant was not an individual with
a disability pursuant to the Rehabilitation Act. The FAD additionally
concluded as to issue (1), that complainant did not establish a prima
facie case of discrimination on the alleged bases. Additionally, the FAD
found that the agency articulated a legitimate, nondiscriminatory reason
for its action; namely, the decision was made to reassign all limited
duty employees (including complainant) to the Atlanta BMC Annex in August
2000 because the number of limited duty assignments at the Atlanta BMC
exceeded the ability of management to provide gainful employment for them.
The FAD found that complainant failed to show, by a preponderance of
the evidence, that this reason was a pretext for discrimination.
As to issue (2), the FAD found that complainant was not aggrieved in
that complainant did not suffer any personal harm as a result of her
supervisor's comment. As to issue (3), the FAD found that the agency
articulated a legitimate, nondiscriminatory reason for its action; namely,
she needed to move her car so that propane tanks could be staged there.
Additionally, the FAD noted that the entire handicapped parking area
was eventually moved across the street, which affected a whole group of
people, and there was no evidence that the action was taken solely to
discriminate against complainant. Complainant makes no new arguments
on appeal. The agency requests that we affirm its FAD. As this is
an appeal from a FAD issued without a hearing, pursuant to 29 C.F.R. �
1614.110(b), the agency's decision is subject to de novo review by the
Commission. 29 C.F.R. � 1614.405(a).
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
decision. In so finding, we note that assuming arguendo complainant is
an individual with a disability within the meaning of the Rehabilitation
Act, the preponderance of the evidence of record does not establish that
discrimination on any alleged basis occurred.<3>
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:
July 23, 2004
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 More specifically, the allegation is that complainant was told by a
supervisor that because of her job limitations she could stand or walk for
two (2) hours intermittently. Complainant contends that as long as she
was doing her job, she should not have been approached about sitting,
and she notes that other clerks keying the bundle sorter were given
chairs so that they could be comforted, although they were not disabled.
2 We note that there is no indication that complainant considers this
action to be a denial of a reasonable accommodation within the meaning of
the Rehabilitation Act. The essence of this claim is that complainant
was told to move her vehicle to a less desirable or hazardous location
because of management's discriminatory or retaliatory animus. Thus,
we will analyze this claim within a disparate treatment framework.
3 Briefly, to the extent that complainant is contending that the comment
in issue (2) constituted unlawful harassment, we find that such comment
was insufficiently severe or pervasive to rise to the level of unlawful
harassment. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).