Arlene G. Virgilio, Complainant,v.William J. Henderson Postmaster General, United States Postal Service, (Great Lakes/Midwest Area), Agency.

Equal Employment Opportunity CommissionFeb 7, 2000
01971818 (E.E.O.C. Feb. 7, 2000)

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.