01980812
04-26-2001
Lucille Nielsen, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Lucille Nielsen v. United States Postal Service
01980812
April 26, 2001
.
Lucille Nielsen,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 01980812
Agency No. 4-A-088-1059-95
Hearing No. 170-96-8389X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning her equal employment opportunity (EEO) 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.
Complainant alleges she was discriminated against on the basis of
disability (aggravation of cervical radiculopathy) when: (1) as of
November 8, 1994, her status, pay, benefits and rights had not been
properly restored due to an occupational injury; (2) the incorrect pay
status for grade and steps, effective September 11, 1994, was sent to the
Office of Workers Compensation Programs (OWCP); and (3) the agency did
not provide complainant with a padded chair. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that during the relevant time, complainant was
employed as a PS-05 Modified General Clerk at the agency's Flemington,
New Jersey Post Office (�facility�). The record reveals that beginning
in 1977, complainant was employed as a full-time Regular Rural Carrier
at the facility. However, in 1993, complainant submitted a Notice
of Occupational Disease and Claim for Compensation with OWCP, citing
bursitis, tendinitis and cervical spondylosis with C6 radiculopathy.
In March of 1994, OWCP accepted complainant's claim for the condition of
aggravation of cervical radiculopathy and subsequently requested that
her treating physician submit a Work Capacity Evaluation regarding her
conditions. Complainant's physician provided her physical restrictions
and stated that she was able to return to work with these restrictions as
of October of 1993. As a result, the agency requested that complainant's
treating physician provide another evaluation so complainant could be
accommodated upon her return to work. In June of 1994, the facility
Postmaster (PM) was informed that to be in compliance with complainant's
restrictions, she would require reassignment to a new position, and
the agency offered complainant the position of Modified General Clerk.
Complainant ultimately accepted the agency's offer of a Modified
General Clerk position in September of 1994, and her duties included
answering the telephone, scanning express mail and handling non-money
window transactions. The record further reveals that when complainant
requested a padded chair for her position, the agency sent complainant
and a supervisor to select a suitable chair.
Complainant filed a formal EEO complaint with the agency on February
21, 1995, alleging that the agency had discriminated against her as
referenced above. At the conclusion of the investigation, complainant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). The AJ issued a decision
without a hearing finding no discrimination.
The AJ initially concluded that complainant was an individual with a
disability, as the undisputed medical evidence of record established
that complainant has permanent aggravated cervical radiculopathy which
affects her musculoskeletal system such that she is substantially limited
in the major life activities of performing manual tasks. Specifically,
the AJ found that complainant is substantially limited in performing the
manual tasks of lifting, pulling, pushing, reaching over her shoulders,
bending, twisting and kneeling.
However, the AJ found that complainant failed to establish that she was
subjected to discrimination. Specifically, the AJ found that regarding
claims (1) and (2), complainant failed to establish that similarly
situated employees were treated differently than she. The AJ further
found that assuming, arguendo, complainant had established a prima facie
case of disability discrimination, the agency articulated legitimate,
nondiscriminatory reasons for its actions and complainant failed to
demonstrate that the agency's reasons were a pretext for discrimination.
In so finding, the AJ noted the testimony of the agency's Human Resources
Specialist (HRS), stating that regarding complainant's status, pay,
benefits and rights, appropriate agency procedures were followed.
Specifically, the HRS stated that complainant's salary upon her return to
work was determined by the agency's Human Resources Information System,
which contains salaries for all postal levels and steps. The AJ found
that complainant failed to establish that the determination of her salary
or the procedure used to reassign her was other than the normal procedure
used with other employees.
Regarding claim (3), the AJ found that complainant failed to establish
that she was not provided a reasonable accommodation in not being
provided a padded chair. The AJ found that the evidence reveals that
after complainant requested the accommodation of a padded chair, a
suitable chair selected by complainant was purchased.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its final order.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. Initially, we agree
with the AJ's finding that in complainant's allegations (1) and (2),
she has alleged disparate treatment rather than a failure by the
agency to accommodate any disability she may have. In considering
complainant's allegations, assuming, arguendo, that complainant is a
qualified individual with a disability, the Commission agrees with the
AJ's finding that complainant failed to establish a prima facie case
of disparate treatment discrimination. In so finding, we note that
with regard to allegation (1), complainant failed to establish that
there were any similarly situated employees were treated differently or
that the agency deviated from its policy for reassigning employees with
occupational injuries. In addition, the Commission agrees with the AJ's
finding regarding allegation (2) that complainant failed to establish
that she was treated differently then were other employees, or that the
agency sent the incorrect status for complainant's pay and grade to OWCP.
While complainant has alleged a failure to accommodate her disability
in allegation (3), the Commission agrees with the AJ's finding that
complainant failed to establish that she was not provided a reasonable
accommodation in not being given a padded chair. The record establishes
that upon requesting a padded chair, complainant and her supervisor
selected and purchased a suitable chair, and complainant has failed to
refute the agency's testimony on this issue. See Investigative Report,
Affidavit B. We thus discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record and arguments and
evidence not specifically addressed in this decision, we AFFIRM the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
April 26, 2001
__________________
Date