Charlie L. Love, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency. Request No. 0520110689 Appeal No. 0120093794 Hearing No. 420-2008-000168X Agency No. 1H361000208 DENIAL Complainant timely requested reconsideration of the decision in Charlie L. Love v. U.S. Postal Service, EEOC Appeal No. 0120093794 (August 2, 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. See 29 C.F.R. § 1614.405(b). In the appellate decision, Complainant alleged that the Agency failed to provide him with a reasonable accommodation when he requested a light duty position and the Agency failed to find him a position. Following a hearing, an EEOC Administrative Judge (AJ) found that Complainant failed to show that he was subjected to disparate treatment as no one outside of his protected basis was treated more favorably. With respect to Complainant’s reasonable accommodation claim, the AJ concluded that Complainant could not perform the essential functions of his custodial position with or without an accommodation. The AJ found that there was no effective accommodation available which would render Complainant qualified for his position or any other vacant position. The Agency adopted the AJ’s final order which found that Complainant failed to show that the Agency subjected him to discrimination. Complainant appealed to the Commission. The Commission agreed that Complainant had not proven, by a preponderance of the evidence, that he was a qualified individual with a disability. Therefore, the Commission affirmed the finding of no discrimination. REQUEST FOR RECONSIDERATION In his request for reconsideration, Complainant maintains that the AJ erred in finding that Complainant could not perform the essential functions of his job with or without accommodation. Complainant contends that he should have first been told about vacant positions within a 50-mile radius as he was willing to accept work within that radius. He maintains that he had to first be reasonably accommodated so that it could determine what work he could perform. Complainant also maintains that he should not have been asked to purchase his own equipment so that he could demonstrate what he could do. He maintains that he was denied reasonable accommodations on several occasions and when he eventually requested permanent light duty, he was denied. Complainant asserts that he was constructively discharged from his position when he was forced to take disability retirement. Complainant also argues that he could have performed the security monitor position. He noted that other employees had been allowed to perform that position, even those who were on light duty like himself. Complainant also notes that his race claim was not fully addressed and was subsumed in his disability claim. In response, the Agency maintains, in pertinent part, that there is no basis for reconsideration. ANALYSIS AND FINDINGS 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 Commission finds that Complainant failed to show 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. The Commission finds that Complainant’s arguments were previously addressed in the AJ’s decision as well as in the appellate decision. Further, we note that contrary to Complainant’s argument, an Agency is not required to provide non-essential duties in order to keep an employee employed. The evidence fully supports the AJ’s decision that Complainant could not perform the essential functions of his position with or without an accommodation. The AJ also found that there was no effective accommodation available which would render Complainant qualified for his position or any other vacant position. Further, with regard to Complainant’s claim of constructive discharge, we note that a constructive discharge occurs when an employer deliberately renders an employee's working conditions so intolerable that the individual is forced from his position. Constructive discharge only occurs when the Agency's actions were taken with the intention of forcing the employee to leave. The Commission has established three elements which Complainant must prove to substantiate a claim of constructive discharge: 1) a reasonable person in Complainant's position would have found the working conditions intolerable; 2) the conduct causing the intolerable working conditions is an EEO violation; and 3) Complainant's resignation was caused by the intolerable working conditions. See Taylor v. Army and Air Force Exchange Service, EEOC Request No. 05900630 (July 20, 1990); see also Perricone v. United States Postal Service, EEOC Request No. 05900135 (June 11, 1990). As discussed above, we find that the Agency's conduct did not amount to unlawful employment discrimination. We discern nothing in the present record that supports a finding that Complainant has established that his alleged forced retirement constituted a constructive discharge. Accordingly, the decision in EEOC Appeal No. 0120093794 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 ___12/09/11_______________ Date 2 0520110689 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0520110689