Gilda Finkelstein v. United States Postal Service 05A21128 11-20-02 . Gilda Finkelstein, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Request No. 05A21128 Appeal No. 01A05038 Agency No. 1H-1885-93 DENIAL OF REQUEST FOR RECONSIDERATION Gilda Finkelstein (complainant) timely initiated a request to the Equal Employment Opportunity Commission (EEOC or Commission) to reconsider the decision in Gilda Finkelstein v. United States Postal Service, EEOC Appeal No. 01A05038 (July 26, 2002). EEOC Regulations provide that the Commission may, in its discretion, 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. See 29 C.F.R. § 1614.405(b). Complainant filed a complaint in July 1993, claiming that she had been discriminated against on the basis of her sex (female - pregnancy) when she was denied light duty for her pregnancy-related restrictions throughout the duration of her pregnancy, most recently on May 5, 1993. The complaint was accepted for investigation. After complainant was issued the report of investigation, she requested a hearing before an EEOC Administrative Judge (AJ), but she subsequently withdrew that request and requested an agency final decision (FAD). The agency issued a FAD on March 1, 1996, finding no discrimination. Complainant appealed that decision and the Commission, after determining that the record was deficient, remanded the complaint to the agency to conduct a supplemental investigation and the issuance of a new FAD. See EEOC Appeal No. 01963645 (September 1, 1998). The agency conducted a supplemental investigation and issued a new FAD on June 6, 2000, again finding no discrimination. The agency found that both females and males were granted and denied light duty requests at the time of her requests for light duty. It also found that she failed to demonstrate pretext in response to the agency's legitimate nondiscriminatory reason, that no available light duty position met her severe physical limitations. Complainant appealed the agency's decision, which the previous decision of the Commission affirmed. In her request for reconsideration, complainant repeated arguments made previously that the agency had not searched with sufficient diligence to find a light duty position that met her limitations. She did not show, however, how the agency's lack of diligence was discriminatory with respect to her sex and condition of pregnancy, and instead argued that the agency does not do enough to accommodate sick or injured workers. We note that under the Pregnancy Discrimination Act of 1978 (PDA), 42 U.S.C. § 2000e(k), a woman affected by pregnancy, childbirth or related conditions must be treated the same for all employment related purposes as other persons not so affected, but similar in their ability or inability to work.<1> Accordingly, a person who is pregnant who seeks light duty must be treated in a like manner to all others who are afforded light duty and given neither greater or less consideration with respect to their rights to light duty. Pregnancy is not a disability within the meaning of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. Stewart v. U.S. Postal Service, EEOC Request No. 05960071 (December 18, 1996); 29 C.F.R. § 1630 app. § 1630.2(h); Definition of the Term "Disability," EEOC Compliance Manual Section 902, 902-9 (March 14, 1995) ("Because pregnancy is not the result of a physiological disorder, it is not an impairment. Complications resulting from pregnancy, however, are impairments" which can rise to the level of a disability if a major life activity is substantially limited.) Therefore, it will not trigger the same obligation of an agency to reasonably accommodate a sick, injured or disabled worker that may arise under the Rehabilitation Act. After a review of complainant's request for reconsideration, 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. 01A05038 remains the Commission's final decision. There is no further right of administrative appeal on the decision of the Commission on this request for reconsideration. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900) 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 (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 ___11-20-02_______________ Date CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to complainant, complainant's representative (if applicable), and the agency on: __________________ Date ______________________________ Equal Opportunity Assistant 1 The PDA amended Title VII to specify that discrimination on the basis of pregnancy constitutes sex discrimination. It requires that for all employment related purposes, pregnant employees shall be treated the same as other employees similarly situated with respect to their ability to work. See, e.g., Ensley-Gaines v. U. S. Postal Service, 100 F.3d 1220 (6th Cir. 1996); Robertson v. U.S. Postal Service, EEOC Request No. 05980323 (October 1, 1998).