EEOC finds no disability discrimination.  Complainant filed an Equal Employment Opportunity (EEO) complaint alleging employment discrimination on the basis of disability (tendonitis and bursitis) when the Agency did not allow her to register on the Outgoing Section’s Overtime Desired List (ODL). Complainant worked as a regular mail processing clerk in the Delivery Bar Code Sorter (DBCS) Section when she experienced pain in her shoulder and neck and her physician gave her physical restrictions that made her unable to continue working as a DBCS. She was reassigned to a temporary full-time limited duty assignment in the Outgoing Section. From January-May, the Agency allowed her to sign the ODL and she received 8-10 hours of overtime a week; however, in early May the Agency told her she could no longer sign up for overtime. The Agency argued that she had been improperly placed on the ODL because she had been placed in her current position as part of the limited duty job offer and not as a result of a bid. Following the initial investigation Complainant requested a hearing, and the Agency moved for a decision without a hearing. The Administrative Judge (AJ) issued a decision without a hearing finding that Complainant was not subjected to disability discrimination, reasoning that although Complainant was a qualified individual with a disability, she failed to prove that she was subjected to disparate treatment because of her disability or denied a reasonable accommodation. The Agency issued a final order adopting the AJ’s findings, Complainant appealed to the Equal Employment Opportunity Commission (EEOC) .

On appeal the EEOC’s Office of Federal Operations (OFO) held that Complainant failed to identify any employee (disabled or non-disabled) who did not have a bid position in the Outgoing Section who was permitted to remain on its ODL. As a result, the OFO held no reasonable fact-finder could conclude the Agency’s explanations are pretext for unlawful disability discrimination. In regards to the argument that the Agency failed to provide a reasonable accommodation because it did not offer her a permanent rehabilitation position, the OFO disagreed with Complainant holding that the fact that Complainant is ineligible for overtime in her current position does not make the accommodation provided her ineffective. The OFO held the AJ properly found no disability discrimination and affirmed the Agency’s final order.

Hurley v. United States Postal Service, EEO Appeal NO. 0120073395 (February 19, 2010)

Kirk J. Angel represents federal employees in EEOC hearing throughout the United States.