0120073514
10-10-2007
Jessica L. Miller, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Jessica L. Miller,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120073514
Hearing Nos. 551-2006-00075X; 551-2007-00026
Agency Nos. 4E-980-0135-05; 4E-980-0086-06
DECISION
On July 17, 2007, complainant filed an appeal concerning her
equal employment opportunity (EEO) complaint alleging 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 deemed timely and is accepted for de novo review pursuant
to 29 C.F.R. � 1614.405(a).1 For the following reasons, the Commission
AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked as
a Sales Service/Distribution Clerk at the agency's Marysville, Washington
Post Office. On November 29, 2005, complainant filed an EEO complaint
alleging that she was discriminated against on the basis of disability
when the agency failed to provide her with reasonable accommodate between
September 2005 and January 2006.
On July 18, 2006, complainant filed a second formal complaint alleging
that she was discriminated against on the basis of disability and in
reprisal for prior EEO activity (arising under the Rehabilitation Act)
when the agency gave her notice on March 29, 2006, of its intent to
terminate her employment effective April 24, 2006.
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. Over complainant's objections, the AJ assigned to
the case granted the agency's October 13, 2006 motion for a decision
without a hearing and issued a decision without a hearing on May 25,
2007 in favor of the agency.
In his decision, the AJ found that complainant failed to establish a
prima facie case of disability discrimination because she did not show
that she was a qualified individual with a disability. The AJ also found
that the agency articulated legitimate nondiscriminatory reasons for
its actions which complainant has not demonstrated to be pretextual.
On June 12, 2007, the agency issued a final order adopting the AJ's
finding that complainant failed to prove that she was subjected to
discrimination as alleged.
On appeal, complainant contends that the AJ erred in finding that she was
not a qualified individual with a disability. She also asserts that the
agency failed to accommodate her by withdrawing an accommodation that it
had provided temporarily. Complainant additionally argues that various
Part-Time-Flexible duties which she could perform were available and
could have been assigned to her as a permanent accommodation. The agency
disagrees with complainant's arguments and requests that we affirm the
final order.
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). In order to be entitled to protection from the Rehabilitation
Act, complainant must make the initial showing that she was a "qualified
individual with a disability." Assuming arguendo that complainant was an
individual with a disability within the meaning of the Rehabilitation Act,
we conclude that she has not proven, by a preponderance of the evidence
that she was a qualified individual with a disability. 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 beginning on approximately September
6, 2005, complainant could no longer perform the essential duties of
the Sales Service/Distribution Clerk position because she was unable
to deal with the public face-to-face or on the telephone due to her
impairments identified as: agoraphobia, severe social anxiety, major
depression and migraines. Complainant herself states that she was not
qualified for her bid position.
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). It is complainant's
burden therefore, to make the showing that there was another vacant,
funded position, for which she was qualified and to which she could have
been reassigned. Complainant and the agency assert that complainant was
offered positions at other facilities, which she rejected. Complainant
has failed to make the showing that a vacant, funded position existed at
her facility at the relevant time. As complainant was not "qualified"
during the time period in question, we cannot conclude that she was
subjected to discrimination under either a reasonable accommodation or
disparate treatment framework. In addition, concerning the reprisal
claim, we discern no evidence of retaliatory animus in this case.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute.2 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
October 10, 2007
__________________
Date
1 Based on a review of the Notice of Appeal and complainant's comments in
her appeal brief, it appears that complainant never received the agency's
final order. However, the agency has produced its final order dated June
12, 2007, and the Commission has reviewed it. We accept complainant's
appeal as timely.
2 In this case, we find that the record was adequately developed for
the AJ to issue a decision without a hearing.
??
??
??
??
2
0120073514
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036