01971818
02-07-2000
Arlene G. Virgilio, Complainant, v. William J. Henderson Postmaster General, United States Postal Service, (Great Lakes/Midwest Area), Agency.
Arlene G. Virgilio v. United States Postal Service
01971818
February 7, 2000
Arlene G. Virgilio, )
Complainant, )
) Appeal No. 01971818
v. ) Agency Nos. 4-J-480-2191-93
) 4-J-480-1093-94
) Hearing Nos. 230-96-4076X
William J. Henderson ) 230-96-4053X
Postmaster General, )
United States Postal Service, )
(Great Lakes/Midwest Area), )
Agency. )
______________________________)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. Complainant alleges that: (1)
based upon her race (white), religion (Jewish) and/or mental disability
(unspecified), the agency subjected her to disparate treatment and
continuing harassment in failing to take action to secure her safety
after her life was threatened by a fellow employee on August 18, 1992
(Allegation No. 1); and (2) based upon her religion (Jewish), sex
(female), mental disability (unspecified), and retaliation (prior EEO
activity), the agency failed to take action following an incident, in
February, 1994, where she was verbally attacked by a fellow employee
(Allegation No. 2). The appeal is accepted in accordance with EEOC
Order 960.001.
On April 24, 1994 and August 9, 1994, complainant filed formal complaints
alleging discrimination as referenced above. Complainant's complaints
were accepted for processing. Following an investigation by the
agency, complainant requested a hearing which commenced on June 4, 1996.
Following the hearing, the administrative judge (AJ) issued a recommended
finding of no discrimination. The agency subsequently adopted the AJ's
recommended finding of no discrimination. It is from this decision that
complainant now appeals.
BACKGROUND
The record reveals the following, unless otherwise indicated: On August
18, 1992, complainant was asked by a coworker (C1) (Black; female;
religion not identified; disability not identified), "if I buy a gun
can I use you for a target?" Complainant responded by advising C1 to
speak to her through her acting supervisor (S0). C1 then repeated her
statement to S0 in front of several co-workers. On August 18, 1992,
postal inspectors were notified of the incident. The record reflects
that an investigation commenced thereafter. On August 19, 1992,
postal inspectors interviewed C1 and one witness. C1 claimed that she
was referring to a water pistol. C1 was warned of the impropriety of
the remark. In addition, C1 explained that she and complainant did not
get along, but that she would not harm complainant.
On August 27, 1992, postal inspectors interviewed the Superintendent
Support Services (SSS) (white; female; Christian; disability not
identified), who stated that complainant's regular supervisor (S1) had
expressed concern in the past about C1's changing behavior. During this
time there had been instances of lost accountable items, as well as, the
falsification of a medical document leading to a removal notice being
issued against C1. SSS, however, explained that the removal notice
was withdrawn pending an agreement that C1 seek psychological help.
SSS also advised the postal inspectors that she met with C1 on August 26,
1992 and asked if she intended to harm complainant. SSS further advised
the postal inspectors that C1, frustrated with the multiple questioning,
sarcastically responded, "not today". SSS also asked if C1 would repeat
the threatening remarks in the future. C1 again responded sarcastically,
"not on the workroom floor."
SSS advised the postal inspectors that C1 was experiencing some personal
problems with the recent death of her father. Therefore it was decided
to put C1 in a non-work status and she was sent for a physical and
mental fitness for duty examination. According to SSS, C1 found
her own psychiatrist and voluntarily enrolled in a therapy program.
SSS further stated that once C1 was cleared by her physician and the
agency's physician, complainant was notified that C1 would be returning.
Because complainant seemed upset with C1's return, SSS offered complainant
a temporary transfer to the Sterling Heights Office. However, complainant
declined the offer. SSS also stated that C1 was offered the temporary
transfer to the Sterling Heights Office, but also declined. However, C1
did subsequently volunteer to transfer to a different unit to avoid any
problems. The record also shows that the local Utica Police Department
conducted its own independent investigation and found no cause to file
criminal charges.
Complainant contends that she developed a mental disability as a direct
result of the August 18, 1992 incident and the harassing actions of
management toward her following the incident. Specifically, complainant
contends that she began seeing a doctor over her anxiety in September,
1992, and discontinued seeing him after he advised her to quit her job
with the agency. Complainant further alleges that upon C1's return to
work in November, 1992, she was suffering from "severe anxiety."
The record also shows that in February, 1993, a new Postmaster (P1)
(white; male; no religious affiliation; disability not identified) took
over at the Utica Post Office. The record reflects that in May, 1993,
all routes in Unit 6 at the Utica Post Office were being validated as
a part of the Delivery Point Sequence (DPS) verification process. This
process was being performed by Quality Control personnel from the district
office. The record further reflects that complainant's route was one of
many not passing. Quality Control informed P1 that they suspected
complainant may not have been accurately reporting the errors on her route
and recommended that a piece by piece verification be performed.
A meeting took place on May 20, 1993, between, P1, complainant, the NALC
union steward (U1), and the Branch Manager (S2)(Male; Caucasian; Roman
Catholic; no disability). P1 advised complainant of Quality Control's
suspicions and that he was reviewing the circumstances involved to
determine if disciplinary action would be necessary. The record indicates
that P1 addressed complainant in an accusatory manner but allowed
complainant an opportunity to respond to the accusations. Complainant
became visibly upset from the accusations. Once P1 determined that it was
possible that the errors made on complainant's route were unintentional,
he opted not to discipline complainant, but instead to provide complainant
with additional training.
Complainant claims that, following this meeting, she began crying all the
time and was unable to function. Complainant was placed off duty by her
physician from May, 1993 through September, 1993. Complainant further
alleges that during her time off, management did things to make her life
harder, such as withholding her pay check, sending her a letter warning
her that she would be charged AWOL, and commenting about her condition
to patrons.
On February 25, 1994, a safety talk was given by S2 who advised employees
that they could no longer use their last break of the day to clear snow
off their cars and start them. The record indicates that following the
meeting, complainant complained to U1 and stated that if she could not
clean off her car, the smokers should not be allowed to go out and smoke.
As complainant made this statement, a co-worker (C2) and smoker, overheard
her and remarked "kiss my a_s."
The record indicates that complainant complained to S2 about C2's
statement. S2 spoke to C2 about the incident. However, C2 refused to
apologize to complainant. S2 explained to complainant that C2 refused to
apologize, but apologized for him. Complainant considered C2's comment
a threat and demanded a personal apology.
Complainant was highly agitated by C2's remark, became visibly upset,
and left work early that day, as a result. Following this incident,
management asked complainant to undergo a physical and psychological
examination because they found her reaction to the incident to
be irrational. However, complainant contested the request for the
examination since she had recently (one month before) undergone a
psychiatric examination for her Office of Worker's Compensation Programs
(OWCP) claim which she filed in response to the incident with C1.
The record also reflects that following the filing of complainant's first
EEO complaint, she began to take contemporaneous notes of her co-workers'
and management's conduct. Management advised complainant that she was
not permitted to take notes during work hours since it was disruptive
to the employees. The record also reflects that complainant used a
recording device while working which she explained was used to record
her thoughts throughout the day. However, management and staff believed
that complainant used the tape recorder to record their statements and
conduct without their approval.
AJ'S RECOMMENDED FINDINGS AND CONCLUSIONS
Allegation No. 1
The AJ found that complainant failed to establish that she was treated
differently than similarly situated employees, outside her protected
groups (race and religion). For the purpose of his decision, the
AJ determined that complainant was disabled, within the meaning
of the Rehabilitation Act. However, the AJ, nevertheless, found no
discrimination because he determined that management properly investigated
the threat made by C1 toward complainant and took appropriate action.
Other Evidence in Support of Allegation No. 1
The AJ determined that P1's review of complainant's route was in response
to information received from the Quality Control personnel and not based
upon discriminatory motives.
The AJ also determined that management's explanation for its requirement
that complainant provide a written request prior to mailing her paycheck
to be legitimate and non-discriminatory. Specifically, management
explained that the requirement was in place for security reasons.
The AJ also noted that complainant failed to proffer any persuasive
evidence to rebut the explanation provided by management.
With respect to complainant's claim that she received a letter
which threatened her with being charged AWOL, P1 testified that he
was unaware of any specific letter. However, he testified that if
complainant received such a letter, she must have failed to provide
medical documentation to support one of her absences while she was off
on medical leave. The AJ found that complainant failed to rebut the
agency's explanation and failed to show that management officials took
action to charge her AWOL.
The AJ found that the above incidents failed to constitute disparate
treatment or harassment.
Allegation No. 2
The AJ determined that complainant failed to prove sex or religion
discrimination since she failed to show that she was accorded treatment
different from that accorded other similarly situated individuals, outside
her protected groups. In addition, the AJ found that the statement by C2
("kiss my a_s") did not rise to the threshold of a verbal attack severe
enough to place a recipient in fear of their safety.
With respect to complainant's disability claim, for the purposes
of his decision, the AJ assumed complainant was disabled within the
meaning of the Rehabilitation Act. However, as indicated above, the
AJ found that complainant failed to prove that she was subjected to
unfavorable action under circumstances which give rise to an inference
of disability discrimination. Specifically, the AJ determined that
the inaction of management to the statement by C2 fails to constitute
unfavorable action toward complainant. In addition, the AJ determined
that the agency's articulated legitimate, non-discriminatory reasons
for its actions were not rebutted by complainant. Lastly, the AJ found,
for the reasons previously stated, that complainant failed to show that
she was subjected to reprisal because the words uttered by C2 did not
require a reaction by management.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that, in all material respects, the AJ accurately set forth the relevant
facts and properly analyzed the case using the appropriate regulations,
policies, and laws. Pursuant to 64 Fed. Reg 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405(a)), all post-hearing factual
findings by an administrative judge will be upheld if supported by
substantial evidence in the record. Substantial evidence is defined as
"such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). Based on
the evidence of record, the Commission discerns no basis to disturb the
AJ's finding of no discrimination.
In addition, we find complainant's contentions on appeal to be without
merit. For example, complainant claims that she had no problems from
management until it became known that she was Jewish in December, 1991.
The record indicates that complainant was the only Jewish employee
and that some of complainant's co-workers (some of them complainant's
own friends) were curious about complainant's Jewish background and
asked her a variety of questions. We find that one of complainant's
co-workers made inappropriate comments about bagels being on sale.
However, we are unpersuaded by the evidence that the alleged responsible
officials were biased against complainant on the basis of her religion.
While complainant testified that her supervisor asked her questions about,
inter alia, Zionism and the Jewish holidays, we do not find such evidence,
alone, in this case sufficient to prove discriminatory animus.<1>
Moreover, we note that complainant alleges discrimination first occurring
on August 18, 1992, approximately 1 year and seven months after the period
that complainant alleges discriminatory statements were made by various
employees about her religion. The record is devoid of any evidence
that complainant's co-workers or supervisors remained curious about her
religion or continued to question complainant about her religion after
the December, 1991 time frame. Accordingly, we are not persuaded that
a sufficient causal connection exists between the alleged evidence of
discriminatory animus in December, 1991 and the alleged discriminatory
acts which began in August, 1993.
In addition, complainant argues that the AJ gave too much weight to
the affidavit of S2. Complainant contends that the evidence shows that
S2 gave a false affidavit. Furthermore, complainant asserts that the
failure of the agency to call S2 to testify at the hearing shows that
the agency did not believe that S2's testimony could withstand cross
examination. While some of S2's testimony is inconsistent with other
testimony, we do not believe that the evidence supports the finding that
S2's testimony is necessarily inaccurate or fabricated. Furthermore,
we note that it is complainant's burden to prove discrimination and she
could have called S2 to testify if she believed his live testimony would
have proven to be incredible. We also find that the AJ implicitly made
credibility determinations, while failing to specifically address such
determinations in his recommended decision. We agree with the AJ's
implicit credibility findings and find the documentary and testimonial
evidence generally supportive of the agency's position.
Complainant also argues that she was denied overtime in 1995 in
retaliation for having filed her initial EEO complaint. The record
indicates that two employees earned approximately $6,000 to $8,000 more in
overtime than complainant in 1995. However, complainant fails to present
evidence that she was at work and available for overtime during that time
period.<2> In fact, complainant testified that her attendance record was
"very spotty." Accordingly, the record is devoid of sufficient evidence
to prove disparate treatment with respect to the overtime issue.
We also note that complainant raised additional allegations during the
investigation and hearing which were not formally raised in her EEO
complaints. For example, complainant testified that she was harassed
when she was required to undergo a fitness for duty examination following
the incident with C2. The evidence shows that complainant's supervisor
was advised by an independent employee with the Employee Assistance
Program to require complainant to take a fitness for duty examination.
In addition, we are not persuaded by the evidence that the fitness for
duty examination was motivated by discriminatory animus.
We find from the record that complainant was overly sensitive to
incidents that are relatively common in the work place. We also find
that complainant's exaggerated reactions and over-suspicious behavior
was the cause of her undesired status among the staff. While the record
generally supports the finding that complainant was treated similarly
to employees outside her protected classes, we find that any possible
differences in treatment were based upon a personality conflict
rather than discriminatory motives. Based upon the entire record,
we are not persuaded that the alleged management officials acted with
discriminatory motives. In addition, we find that evidence does not
support a finding of a hostile work environment, because we do not find
the alleged harassment severe, pervasive or hostile.
We also note that the record does not support a finding that complainant
was a qualified individual with a disability,<3> within the meaning
of the Rehabilitation Act.<4> The record indicates that according
to complainant's doctor she was suffering from an "occupationally
caused emotional condition, stressed induced." We do not find this
description, alone, sufficient to prove that complainant suffers
from a mental impairment. In addition, complainant's physician
described her condition as "a depressive and anxiety reaction which is
incapacitating, and prohibits her from attending work." This statement,
alone, is insufficient in proving that complainant was substantially
limited in a major life function. In fact, the record indicates that
complainant was not substantially limited, as her physician recommended
various leave periods of 30 days or less. Accordingly, we find the
evidence insufficient to prove that complainant is disabled under the
Rehabilitation Act. See 29 C.F.R.�1630.2(g).
To the extent that complainant argues that she was regarded as disabled,
such regard occurred, at the earliest, in November, 1993, when S2 first
received the OWCP determination in complainant's favor. Yet, much of the
alleged harassment occurred prior to November, 1993. With respect to the
alleged harassment that took place after November, 1993, we do not find
sufficient evidence of discriminatory animus. In addition, since we do
not find complainant to be a qualified individual with a disability, we
find that the agency held no duty to reasonably accommodate complainant
or modify the conduct which we find common in the workplace.
In addition to the arguments addressed above, nothing asserted by
complainant on appeal differs significantly from arguments previously
raised and given full consideration by the AJ. Accordingly, we discern
no basis upon which to disturb the AJ's finding of no discrimination
and hereby AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
2/7/00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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 Employment Assistant
1 Complainant also presented testimony regarding two supervisors who
greeted each other in the morning by clicking their heels and saying
"Seig Heil" (the Nazi salute). However, the record indicates that this
conduct was witnessed approximately 20 years ago and that complainant
never personally witnessed such conduct. In addition, the individuals
involved did not supervise complainant during the relevant time period
and are not alleged responsible management officials herein. Accordingly,
while we find this conduct, in and of itself, indicative of discriminatory
animus toward Jews in general, we do not find that such conduct was
directed toward complainant or that the individuals involved were
responsible for any alleged disparate treatment or harassment toward
complainant.
2In addition, we are not persuaded that the evidence supports the finding
that complainant was similarly situated to these two employees.
3 While the AJ assumed for the purpose of her recommended decision that
complainant was disabled under the meaning of the Rehabilitation Act,
she, nevertheless, refrained from making a finding based upon evidence
in the record.
4The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.