0520110718
02-17-2012
Cynthia A. Bingham, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Cynthia A. Bingham,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Request No. 0520110718
Appeal No. 0120083907
Agency No. 1J-531-0016-08
DENIAL
Complainant timely requested reconsideration of the decision in Cynthia
A. Bingham v. U.S. Postal Service, EEOC Appeal No. 0120083907 (August
12, 2011). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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.
ISSUE PRESENTED
The issue presented is whether Complainant met the criteria for
reconsideration by demonstrating that the appellate decision: (1)
involved a clearly erroneous interpretation of material fact or law;
or (2) will have a substantial impact on the policies, practices, or
operations of the Agency.
BACKGROUND
In the underlying case, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of disability (torn
rotator cuff/shoulder) and reprisal for prior protected EEO activity
when, on November 23, 2007, it disallowed her bid for a Mail Processing
Clerk position.
The appellate decision affirmed the Agency’s final decision, which
found that Complainant failed to prove that she was subjected to
discrimination as alleged. The appellate decision noted that, when a
bidder has permanent medical restrictions, the Agency was required to
determine if the bidder could perform the essential functions of the
bid position and if there was a reasonable accommodation available.
The appellate decision found that Complainant, who had permanent medical
restrictions, could not perform the duties of the bid position without
using the services of another employee – an accommodation that was
not reasonable. The appellate decision concluded that Complainant did
not show that the Agency’s actions were discriminatory.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant argued that the Agency’s
actions were discriminatory because she was able to perform all the
requirements of the bid position and management knew about her prior EEO
complaint. Specifically, Complainant asserted that her updated medical
documentation showed that she could return to full duty in six months
with no overhead lifting. In addition, Complainant asserted that the
bid position did not require overhead lifting. Finally, Complainant
asserted that, subsequent to the Agency disallowing her bid, she has
worked on the same machines doing the same tasks that she would have
done in her bid position.
The Agency did not submit a response to Complainant’s request for
reconsideration.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant’s request for reconsideration does
not establish that the appellate decision involved a clearly erroneous
interpretation of material fact or law, or that the appellate decision
will have a substantial impact on the policies, practices, or operations
of the Agency. Complainant failed to show that the appellate decision
clearly erred in finding that the Agency did not discriminate against
her because of her disability1 or prior EEO activity when it disallowed
her bid for a Mail Processing Clerk position. Regarding her disability
discrimination claim, the record reflects that Complainant was not
“qualified” for the bid position because she could not perform the
essential functions of the new position, with or without reasonable
accommodation.
First, although Complainant argued otherwise in her request for
reconsideration, documentary evidence in the record shows that the
essential functions of Complainant’s bid position involved overhead
lifting. Specifically, a November 2007 “Essential Job Function Analysis
Checklist” indicates that “unloading APC’s” and “spreading
1st class tubs into APC’s” were essential functions of the position.
Report of Investigation (ROI), at 186. In addition, the same document
includes a suggestion from Complainant that she would need someone to
help with those tasks when the tubs were over her head. Id.
Second, Complainant’s own words show that she could not do any
overhead lifting. Specifically, Complainant admitted in her affidavit,
“Sometimes my abilities are limited … I still have a problem reaching
over my head … Lifting over my head is the major problem that I have
and that is where I feel the most pain.” Id. at 126. Moreover,
Complainant stated, in her request for reconsideration, that she was
restricted from overhead lifting.
Third, the appellate decision determined that the only way for the
Agency to accommodate Complainant in the bid position – using the
services of another employee to perform some of the essential functions
– was not reasonable. We note that an agency never has to reallocate
essential functions as a reasonable accommodation, but can do so if it
wishes. See EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship under the Americans with Disabilities Act, EEOC Notice
No. 915.002, Question 15 (as revised Oct. 17, 2002).
Lastly, although Complainant argued that she is performing the same
functions now as she would have in her bid position, we find that she
has provided no evidence to support her bare assertion.
Regarding her reprisal discrimination claim, the appellate decision
found that the Agency’s knowledge of her prior EEO activity had no
causal connection with the bid position at issue. Complainant did not
show otherwise in her request for reconsideration, but merely reiterated
that the Agency knew about her prior EEO complaint.
CONCLUSION
After reviewing the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to DENY
the request. The decision in EEOC Appeal No. 0120083907 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
___2/17/12_______________
Date
1 Like the prior decision, for purposes of analysis, the Commission
shall assume, without so finding, that Complainant is an individual with
a disability entitled to coverage under the Rehabilitation Act.
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0520110718
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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