Beatrice M. Bullard, Appellant, v. Marvin T. Runyon, Postmaster General, United States Postal Service, (Allegheny/Mid-Atl. Areas) Agency. Appeal No. 01934156 Hearing No. 120-92-9856X Agency No. 2-U-1069-92 INTRODUCTION On October 9, 1993, Beatrice M. Bullard (hereinafter, appellant) filed an appeal with the Equal Employment Opportunity Commission (hereinafter, the Commission or the EEOC) from a final decision of the Postmaster, United States Postal Service (Allegheny/Mid-Atl. Areas) (hereinafter, the agency) dated July 6, 1993.1 The final agency decision (FAD) concerns appellant's equal employment opportunity (EEO) complaint, alleging discrimination on the bases of age (63), and physical disability (blind in one eye), in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §621 et seq.; and §501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 et seq. The Commission hereby accepts the appeal in accordance with EEOC Order No. 960, as amended. ISSUES PRESENTED Whether appellant has proved by a preponderance of the evidence that she was discriminated against based on age (63) and physical disability (blind in one eye) when: (1) her position was abolished and she was reassigned; and (2) she was allegedly constructively discharged thereafter. CONTENTIONS ON APPEAL Appellant contends that: (1) the Recommended Decision of the EEOC Administrative Judge (AJ) was contrary to the weight of evidence; and (2) the agency failed to reasonably accommodate appellant's disability. The agency did not reply to appellant's contentions on appeal. BACKGROUND Appellant, a Mail Clerk, PS-5, filed a formal EEO complaint on November 9, 1991, alleging that the agency had discriminated against her on the above bases when (1) her position was abolished and she was reassigned; and (2) she was allegedly constructively discharged thereafter. The agency accepted and investigated the complaint, and issued a Proposed Disposition finding no discrimination. Appellant next requested a hearing, which was held on October 23, 1992. After the hearing, the AJ issued a RD finding no discrimination, and the agency concurred with the RD in its own FAD issued on July 6, 1993. It is from this decision that appellant now appeals. In regard to appellant's complaint, the Field Operations Director (FOD) testified that in 1991, excess hours and personnel were examined to determine what cuts should be made in Roanoke area post offices. An audit revealed that a large portion of parcel work previously handled by the agency was now handled by a private parcel service. It was therefore determined that the basis for appellant's position no longer existed. Inasmuch as the agency was also in a tight budgetary situation, it reassessed numerous positions in various post offices and began to increase automation and use of Part Time Flexible (PTF) Clerks. Accordingly, on September 30, 1991, the Director of Human Resources (DHR) told appellant that she was being excessed and gave her two options: either (1) revert to being a PTF clerk; or (2) be involuntarily reassigned full-time to the Roanoke Management Sectional Center (RMSC) as a Mail Processor with payment for moving expenses. Appellant opted for the second alternative under protest, and was reassigned to the RMSC effective December 7, 1991. On November 22, 1991, appellant went on sick leave, however, and never reported to the RMSC. On January 15, 1992, she then hand delivered a letter to the DHR stating that she was retiring under duress. Appellant argued that she could not afford to take the PTF position, could not commute to the RMSC because her disability limited her ability to drive, and could not move to Roanoke because her husband was ill. The DHR testified that he told appellant that he might be able to arrange having her work as a PTF Clerk at her regular post office as well as surrounding post offices. The records indicate that had appellant remained at her regular post office, all hours would have been divided between her and two other PTFs. ANALYSIS AND FINDINGS Appellant's complaint allegations constitute claims of disparate treatment based on physical disability, and age. As such, the claims must be analyzed under the three-tier order and allocation of proof as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F. 2d 292 (5th Cir. 1981); and Loeb v. Textron, Inc., 600 F. 2d 1003 (1st Cir. 1973). The record indicates that appellant fails to establish a prima facie case of discrimination on the basis of age, since she cannot point to any similarly situated comparative employee younger than she was whose position was not also abolished under similar circumstances. Appellant does succeed in establishing that she is a qualified individual with a physical disability to the extent that while her partial blindness substantially limited her ability to see, she could still perform the essential functions of her position without accommodation. Yet again she fails to establish a prima facie case of discrimination as she cannot point to any similarly situated nondisabled employees whose position was not also abolished under similar circumstances. Assuming, arguendo, that appellant could establish a prima facie case of discrimination, the agency is still able to articulate a legitimate, nondiscriminatory reason for abolishing appellant's job. This is that it excessed a number of full-time positions for budgetary and efficiency reasons, and several employees outside appellant's protected groups were also excessed as well as appellant. Thus she cannot argue that she received less favorable treatment than they did. Appellant also argues that the agency failed to reasonably accommodate her disability by not assigning her to a full-time position at a post office closer to her home. The Commission has previously determined, however, that an agency is not required to provide a requested accommodation if it does not assist the disabled person to perform the essential functions of his position. Belser v. United States Postal Service, EEOC Petition No. 03900064 (July 6, 1990). In the instant case, it is clear that the requested accommodation did not have anything to do with appellant's performance of her position but rather with her ability to commute. To the extent that appellant argues a failure to accommodate on the part of the agency, we further note that she was given two viable options which she did not accept, i.e., to stay at her regular post office in a PTF position, which would not have involved a longer commute; or to be reassigned to the RMSC with payment for moving expenses, such that her commuting time could have stayed roughly the same or less from a new home. Hence the Commission determines that appellant also fails to show that she was subjected to such intolerable working conditions that she was, in effect, constructively discharged. See Kutsky v. Dept. of Energy. EEOC Request No. 05900361 (June 19, 1990). Accordingly, we find that appellant has failed to show by the necessary preponderance of the evidence required under the guidelines of McDonnell Douglas, supra, that she was discriminated against by the agency. CONCLUSION Based upon a careful review of the record evidence, it is therefore the decision of the EEOC to AFFIRM the agency's finding that it did not discriminate against appellant on the bases of physical disability or age. RECONSIDERATION (M1092) The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or 3. The decision is of such exceptional nature as to have substantial precedential implications. Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or within twenty (20) calendar days of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and 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 filed on the date it is received by the Commission. RIGHT TO FILE A CIVIL ACTION (S0993) It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092) 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 of 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. ('Rights to File A Civil Action'). FOR THE COMMISSION: Ronnie Blumenthal Director Office of Federal Operations May 03, 1994 Footnotes 1 1. The agency was unable to supply a copy of a certified mail return receipt or any other material capable of establishing the date appellant received the agency's final decision. Accordingly, since the agency has failed to fulfill its obligation to transmit its final decision by a method enabling the agency to show the date of receipt (see 29 C.F.R. §1613.221 (b)), the Commission presumes that appellant's appeal was filed within thirty (30) days of receipt of the agency's final decision. See 29 C.F.R. §1614.402. Accordingly, the appeal is considered timely (see 29 C.F.R. §1614.402(a).