01976452
05-18-2000
Diane Kirkman, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region), Agency.
Diane Kirkman v. United States Postal Service
01976452
May 18, 2000
Diane Kirkman, )
Complainant, )
) Appeal No. 01976452
v. ) Agency No. 1C-441-1061-96
) Hearing No. 220-97-5057X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her Equal Employment Opportunity (EEO) 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.; the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.;
and � 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.<1>
Complainant alleges that she was discriminated against and harassed on
the bases of race (Black), color (white)<2>, national origin (American),
sex (female), age (DOB: 10/10/53), physical disability (bilateral
carpal tunnel syndrome and chronic bursitis), and mental disability
(stress) when: (1) since a December 28, 1995, injury, her supervisor
verbally abused her in front of coworkers and refused to honor her
medical restrictions; and (2) on January 12, 1996, her supervisor did
not complete a CA-2 form and submit it to the Injury Compensation Unit.
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405).<3> For the following reasons,
we affirm the FAD.
The record reveals that complainant, a Distribution Clerk at the agency's
John O. Holly facility in Cleveland, Ohio, filed a formal EEO complaint on
March 5, 1996, alleging discrimination and harassment as referenced above.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). Pursuant to complainant's
request, the AJ issued a Recommended Decision (RD) without holding
a hearing.
The AJ concluded that complainant failed to establish a prima facie
case of harassment under any of complainant's alleged bases because
complainant failed to show that the agency's alleged actions were so
severe and pervasive as to render hostile the conditions of her work
environment. The AJ found only one documented instance of a verbal
confrontation between complainant and her supervisor which he concluded
was insufficient to show harassment.
The AJ also found that complainant failed to establish a prima facie case
of discrimination on any of the alleged bases. Concerning her claim of
discrimination based on stress and chronic bursitis, the AJ found that
complainant failed to proffer credible evidence establishing that either
condition was a disability within the meaning of the Rehabilitation Act.
In regard to complainant's carpal tunnel syndrome, the AJ concluded that
she failed to rebut her supervisor's assertion that each limited/light
duty employee had different medical restrictions and that no employee
was forced to work outside of his or her own medical restrictions.
The AJ concluded that complainant's claim concerning the CA-2 Form
was moot because the agency submitted a copy of the completed CA-2 Form
stamped "RECEIVED" by the agency's Injury and Compensation Unit on October
23, 1996.<4> The AJ noted that complainant failed to show how she was
harmed by the agency's eight month delay in filling out the CA-2 Form.
The agency's FAD adopted the AJ's RD. Neither party submitted a statement
on appeal.
Based on the standards set forth in Harris v. Forklift Systems, 510
U.S. 17 (1983), we agree with the AJ that complainant failed to establish
a prima facie case of harassment.<5> In reaching this conclusion,
we specifically note complainant presented no evidence that there was
anything objectively offensive, abusive or hostile in her supervisor's
instructing her when to take lunch. See Wolf v. United States Postal
Service, EEOC Appeal No. 01961559 (July 23, 1998). We further find that
there is no evidence supporting complainant's claim that her supervisor
refused to honor her medical restrictions or that complainant was harmed
by the agency's delay in processing her CA-2 Form.
While we agree with the AJ's conclusion that complainant failed to
establish a prima facie case of harassment under any of complainant's
alleged bases, we note that the AJ did not make specific findings
as to whether complainant was treated less favorably than similarly
situated employees. Based on the standards set forth in McDonnell
Douglas Corp. v. Green, 411, U.S. 792 (1973); Loeb v. Textron, 600 F.2d
1003 (1st Cir. 1979); and Prewitt v. United States Postal Service,
662 F.2d 292 (5th Cir. 1981), we find that complainant did not prove
that she was treated less favorably than similarly situated employees
outside of her protected classes. The record is silent as to whether
other employees were instructed to take lunch at specific times, and we
find that complainant failed to rebut her supervisor's assertion that no
employee was required to work outside of his or her medical restrictions.
Furthermore, since a fair reading of the instant complaint indicates that
the issue of compensatory damages has been raised, we disagree with the
AJ's finding that complainant's claim concerning the CA-2 Form is moot.
See Miller v. Department of Health and Human Services, EEOC Request
No. 05970174 (August 26, 1998). However, we agree with the AJ that
complainant failed to establish harm as a result of the processing delay,
and we note that there is no evidence regarding the agency's processing
of other employees' CA-2 Forms.
We do not reach the issue of whether or not the AJ correctly held that
complainant is not a individual with a disability within the meaning of
the Rehabilitation Act. Based on our review of the record, we find that
even assuming arguendo complainant is an individual with a disability,
we find that complainant failed to present evidence that any of the
agency's actions were motivated by discriminatory animus toward her race,
color, national origin, sex, age or disability. Accordingly, we discern
no basis to disturb the AJ's findings of no discrimination. Therefore,
after a careful review of the record, including arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 18, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The 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.
2 Complainant alleged color (white) in her formal complaint which was
accepted by the agency for investigation.
3 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
4 We note that this evidence is not contained in the record before us.
The RD refers to it as Exhibit 1 and indicates that it was attached to
the agency's April 22, 1997, Request to Submit Evidence.
5 The Commission has stated that: "Harris also applies to cases involving
hostile environment harassment on the basis of age or disability."
See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on
Harris v. Forklift Systems, Inc. at 9.