0120070696_Castillo
02-26-2009
Christina Castillo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Christina Castillo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070696
Hearing No. 360-2005-00326X
Agency No. 4G780009805
DECISION
On November 20, 2006, complainant filed an appeal from the agency's
September 11, 2006 final order concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
At all times relevant to this complaint, complainant worked as a Mail
Processing Clerk at the agency's Processing and Distribution Center
in Austin, Texas. On December 14, 2004, complainant experienced back
pain that resulted in a diagnosis of a lumbar strain (muscle pain).
Complainant filed a claim with the Office of Workers' Compensation
Program, which was accepted. On December 20, 2004, complainant's doctor
authorized complainant to return to work with a five-pound lifting
restriction and to sit or stand as needed.
On December 28, 2004, complainant was given a new modified assignment
which assigned her to work in Manual Operations 030, 040, 044, and 150.
As explained by the agency, these numbers refer to areas at the plant
where employees case mail. These particular cases were modified to
complainant's restrictions so that she could sit while she performed the
work. Complainant was assigned the same 6:00 p.m. to 2:30 a.m. schedule
as in her regular assignment.
On January 13, 2005, complainant was working in the 030 area when
her back became aggravated. Complainant told her doctor that she was
working in Manual Operations when she had her "relapse." The doctor
subsequently completed a new work restrictions form, and included
the language "No Manual Ops 030, 040, 044, 150." The doctor made no
changes to complainant's physical restrictions of lifting no more than
five pounds and sitting or standing as needed. Based on this new form,
the agency gave complainant a new modified assignment which changed her
work hours to 5:00 pm to 1:30 am.
Complainant's supervisor noted that complainant worked extremely
slowly in her new assignment. On March 8, 2005, complainant was given
a new modified assignment which included work in Manual Operations.
Her hours were changed back to 6:00 pm to 2:30 am. When a supervisor
told complainant to work in the 030 area, complainant refused to do
the work and just sat at the case. After 20 minutes, the supervisor
assigned her different duties. The next day, complainant was given
a new modified assignment that eliminated the provision that assigned
her to Manual Operations. Complainant was not punished for refusing to
follow the supervisor's orders.
On March 12, 2005, complainant asserts that she "re-aggravated" her
back. Complainant's supervisor was not in her office and was paged
for assistance. The supervisor told complainant to stop doing the
work that caused her the pain and to begin performing a different task.
Soon after, complainant's pain became severe and she asked a coworker to
find the supervisor. After what complainant describes as "a long time"
elapsed, the supervisor arrived and called 911.
On March 2, 2005, complainant initiated EEO Counselor contact. On May
16, 2005, complainant filed a formal complaint of discrimination on the
bases of sex (female) and disability (lumbar strain) when:
1. On December 27, 2004, she was instructed to see two contract doctors;
2. On January 12 and January 19, 2005, she was given pre-disciplinary
discussions;
3. On February 9, 2005, the MDO made a sarcastic remark indicating that
she and another co-worker were not performing productive work;
4. On March 8, 2005, her work schedule was changed;
5. On March 9, 2005, she was instructed to perform duties outside of
her medical restrictions; and
6. On March 12, 2005, her life was allegedly placed in danger due to
management's failure to provide medical assistance in a timely manner.
The agency accepted claims 4, 5 and 6 for investigation, but dismissed
claim 1 for untimely EEO Counselor contact and claims 2 and 3 for failure
to state a claim. At the conclusion of the investigation, complainant
was provided with a copy of the report of investigation and notice
of her right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. The AJ held a telephonic
hearing on May 17, 2006 and issued a decision on August 31, 2006. In her
decision, the AJ affirmed the agency's dismissal of claims 1, 2, and 3.
Further, the AJ found that complainant failed to establish that she
was harmed with regard to claim 5, and therefore dismissed that claim
for failure to state a claim. Finally, the AJ found that complainant
failed to establish in the remaining claims that the agency's actions
were motivated by discriminatory animus. The agency subsequently issued
a final order fully implementing the AJ's decision.
ANALYSIS AND FINDINGS
As an initial matter, we note that the hearing in this case was held
by telephone at the Administrative Judge's (AJ's) behest, without the
objection of the parties. The Commission has held that testimony may not
be taken by telephone in the absence of exigent circumstances, unless
at the joint request of the parties and provided specified conditions
have been met. Louthen v. United States Postal Service, EEOC Appeal
No. 01A44521 (May 17, 2006). The instant hearing was coincidentally held
on the same date as the Commission's decision in Louthen. Since the
facts of this case pre-date Louthen, we determine the propriety of
conducting the hearing telephonically by considering the totality of the
circumstances. Here, it is unclear whether exigent circumstances existed.
Nonetheless, the record does not contain issues of witness credibility
that may have been impacted by the taking of testimony telephonically.
Under these circumstances, even if it is assumed that the AJ erred by
taking testimony telephonically, the Commission finds that her action
constituted harmless error.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Here, we find no basis in the record to disturb the AJ's findings.
Dismissed Claims
Pursuant to EEOC regulations, an agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition. 29
C.F.R. �� 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers
a present harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). If this is not
established, the regulation set forth at 29 C.F.R. � 1614.107(a)(1)
provides, in relevant part, that an agency shall dismiss the complaint
for failure to state a claim.
After careful consideration of the record, the Commission concludes that
the agency properly dismissed claims 2, 3, and 5 for failure to state
a claim. We find that these claims fail to state a claim under the EEOC
regulations because complainant failed to show that she suffered a harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Here, while complainant may
have had pre-disciplinary discussions, she was never actually disciplined.
Additionally, complainant failed to establish that she suffered a harm
when the MDO made a sarcastic remark. Further, while complainant was
ordered to perform a task in manual operations, she refused to do so
and never actually worked outside of her limitations. In addition, she
was not subjected to discipline for refusing to follow her supervisor's
orders. Therefore, she did not suffer a harm, and is not considered an
aggrieved employee. The dismissal of these claims was appropriate.
Further, the agency dismissed claim 1 for untimely EEO Counselor contact.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that would support a charge of discrimination
have become apparent. Here, complainant knew or should have known
that she was discriminated against on December 27, 2004, when she was
instructed to see two contract doctors. Her EEO Counselor contact on
March 2, 2005, is well beyond the 45-day time limit prescribed by our
regulations. Therefore, dismissal of this claim was appropriate.
Disparate Treatment
Complainant alleges that she was discriminated against on the bases
of his disability (lumbar sprain) and her sex (female). To prevail
in a disparate treatment claim such as this, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
initially establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case
will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 804 n. 14. In order to establish a prima facie
case of disability discrimination, complainant must establish that she
is a qualified individual with a disability. See Sims v. United States
Postal Service, EEOC Petition No. 03A00033 (Feb. 25, 2000); 29 C.F.R. �
1630.4 (prohibiting discrimination against qualified individuals with
disabilities). A "qualified" individual with a disability satisfies
the requisite skills and experiences for the job, and is capable of
performing the essential functions of the position with or without
reasonable accommodation. See 29 C.F.R. � 1630.2(m). To prove a prima
facie case, complainant also must show that the agency took adverse action
against her or failed to provide a reasonable accommodation, and must
demonstrate that a causal relationship exists between the agency's reasons
for its actions and complainant's disability. See Moore v. Department
of the Army, EEOC Request No. 05960093 (October 16, 1998). The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
134 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Here, we will assume, for the sake of argument only, that complainant has
established her prima facie cases of sex and disability discrimination.
The agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, complainant was moved to a new modified
assignment and placed back on her regular work schedule because she
was moving too slowly while performing her assigned duties. Further,
management denied delaying medical assistance for complainant, and
asserts that it acted promptly to get complainant medical care.
Complainant must now establish, by a preponderance of the evidence,
that the agency's articulated legitimate, nondiscriminatory reasons
are pretext for discrimination. The AJ found that, assuming arguendo,
management delayed in their response to complainant's assertions that
she was in physical pain and needed medical assistance, there is no
evidence in the record that would establish that the delay was based
on a discriminatory animus towards complainant's sex or disability.
Instead, the record suggests that the manager did not understand the
severity of the situation, and acted appropriately once the need for
medical assistance was apparent. Further, complainant failed to offer
evidence that would establish that discrimination more likely than not
played a role in the agency's decision to move her to a position with a
different work schedule. A preponderance of the evidence in the record
supports the agency's assertion that complainant was moved to the new
position with the new work schedule because she was working too slowly
in the previous modified assignment. Therefore, we AFFIRM the final
agency order.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
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
February 26, 2009
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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