0120070302
09-17-2007
Sandra Y. Musser, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Sandra Y. Musser,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120070302
Hearing No. 220-2005-00296X
Agency No. 4C-440-0196-05
DECISION
On October 20, 2006, complainant filed an appeal from the agency's
September 15, 2006, final order concerning her equal employment
opportunity (EEO) complaint alleging 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 deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a).
At the time of events giving rise to this complaint, complainant worked
as a part time flexible (PTF) Distribution and Window Clerk assigned to
the agency's Post Office, in Warren, Ohio. On June 1, 2005, complainant
filed an EEO complaint alleging that she was discriminated against on
the bases of her race (Caucasian), sex (female), disability (neurotic
depression, herniated L4-5 disc), and age (D.O.B. 02/03/63) when, on
May 4, 2005, she was denied limited duty work.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case subsequently issued a
decision without a hearing in favor of the agency on September 12, 2006.
Specifically, the AJ assumed arguendo that complainant was disabled
pursuant to the Rehabilitation Act, and found that complainant had not
shown that she was a "qualified individual with a disability." In so
finding, the AJ relied in part on a medical document, dated November 5,
2004, which states that complainant's medical restrictions regarding
her back injury are permanent, and they preclude her from performing the
duties of a Postal Service Clerk. The AJ further found that complainant
had not shown that she was "qualified" for any vacant, funded position.
The AJ additionally found that complainant failed to establish her claims
of disparate treatment on any alleged basis, noting that complainant had
not identified any similarly-situated individuals, not in her protected
classes, who were treated more favorably under similar circumstances.
The AJ concluded with a finding of no discrimination. The agency
subsequently issued a final order adopting the AJ's finding that
complainant failed to prove that she was subjected to discrimination as
alleged.
Complainant raises no new arguments on appeal. As an initial matter
we note that, as this is an appeal from a final order 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).
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. ��
1630.2(o) and (p). Assuming arguendo that complainant is disabled under
the Rehabilitation Act, we agree that she has not shown that she is
"qualified" for the position for which she was hired, or for any other
vacant, funded position. A "qualified individual with a disability"
is an individual with a disability who satisfies the requisite skill,
experience, education and other job related requirements of the
employment position such individual holds or desires, and who, with or
without reasonable accommodation, can perform the essential functions
of the position. 29 C.F.R. � 1630.2(m). The record evidence indicates
that complainant could not perform the essential duties of her position,
which is why she requested limited duty. An employer is not required
to create a job for a disabled employee. See Mengine v. Runyon,
114 F. 3d 415, 418 (3d Cir. 1997); see also Woodard v. United States
Postal Serv., EEOC Appeal No. 01A21682 (July 29, 2003); EEOC Enforcement
Guidance: Workers Compensation and the ADA, EEOC Notice No. 915.002 at 21
(September 3, 1996). Complainant has not shown that she was qualified
for a other vacant, funded position at the agency, and it is her burden
to make this showing. Accordingly, we cannot conclude that the agency
violated the Rehabilitation Act by failing to provide her with reasonable
accommodation.
Disparate Treatment
The allocation of burdens and order of presentation of proof in a
Title VII, ADEA or Rehabilitation Act case alleging disparate treatment
discrimination is a three step procedure: complainant has the initial
burden of proving, by a preponderance of the evidence, a prima facie case
of discrimination; the burden then shifts to the employer to articulate
some legitimate, nondiscriminatory reason for its challenged action; and
complainant must then prove, by a preponderance of the evidence, that
the legitimate reason offered by the employer was not its true reason,
but was a pretext for discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Assuming complainant could establish a prima
facie case of discrimination on the alleged bases, the agency has
articulated legitimate, nondiscriminatory reasons for its challenged
action, namely, there was not work available for complainant within
her restrictions. Complainant has failed to present evidence that
the agency's explanation (no work available within her restrictions)
is mere pretext for discrimination.
After a careful review of the record, the Commission finds that the
AJ's issuance of a decision without a hearing was appropriate, as no
genuine issue of material fact is in dispute.1 See Petty v. Department
of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we
AFFIRM the agency's final order.
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
September 17, 2007
__________________
Date
1 In this case, we find that the record was adequately developed for
the AJ to issue a decision without a hearing.
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0120070302
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036