01974276
01-24-2000
Ester J. Morillo, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ester J. Morillo v. United States Postal Service
01974276
January 24, 2000
Ester J. Morillo, )
Complainant, )
) Appeal No. 01974276
v. ) Agency No. 1F-951-1031-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
concerning her complaints of unlawful employment discrimination on the
basis of reprisal (prior EEO activity) in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.; and
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791, et seq.<1>
The appeal is accepted in accordance with EEOC Order No. 960.001.<2>
For the following reasons, the final agency decision is AFFIRMED.
ISSUE PRESENTED
The issue presented herein is whether complainant has established that
she was harassed on the above-reference bases when: (1) on May 24, 1996,
her supervisor touched her injured shoulder; (2) on May 24, 1996 and
June 28, 1996, she was ordered to report to the OCR<3> against medical
restrictions; (3) on June 8, 1996, she was marked AWOL when she left
the OCR on May 24, 1996 to do her stretching exercises; and (4) when
her supervisor persuaded her doctor to change her medical restrictions.
PROCEDURAL HISTORY
Complainant initiated contact with an EEO counselor on May 24, 1996 and
again on June 24, 1996. Following the final interviews, both by letter,
complainant filed two formal complaints on August 1, 1996. Pursuant to
EEOC regulations, the agency consolidated the two complaints for joint
processing. 29 C.F.R. � 1614.606. The agency accepted the joint
complaint for processing and, at the conclusion of the investigation,
issued a final decision finding no discrimination. This appeal followed.
FACTUAL BACKGROUND
According to the counselor's report, complainant alleges that on May 24,
1996, her supervisor touched her injured shoulder.<4> The supervisor,
however, did not recall touching complainant's shoulder on the date cited.
He admitted that he may have touched her shoulder in the past if she was
wearing headsets and he needed to get her attention or if she fell asleep
and he needed to wake her so that she would not fall off of her chair
onto the floor. The supervisor stated that he never knew that touching
complainant on the shoulder bothered her until the Acting Manager of
Distribution Operations (AMDO) informed him of her formal complaint.
He stated further that, from that point onward, he never touched her on
the shoulder again.
Regarding the second issue, the AMDO stated that on May 24 and June 24,
1996, she directed the complainant to sort through trays of nonlocal
mail and abstract the local mail. According to the AMDO, the complainant
was not required to do any lifting, was not under any time constraints,
and the task did not violate her medical restrictions. According to
complainant's doctor, as of May 1, 1996, complainant was capable of
continuing to work her regular duties.
In addressing the third issue, both alleged discriminating officials
(the supervisor and the AMDO) deny that complainant was charged AWOL
when she left the OCR to do her stretching exercises. According to them,
complainant left her work area without authorization and her supervisor
questioned her whereabouts. They both stated that complainant is
allowed to perform her stretching exercises whenever necessary, however
she must get permission before doing so. Information contained in the
investigative indicates that complainant was charged eight minutes of
AWOL. According to that information, complainant went to lunch at 3:17
and did not return to her work area until 4:05. During an investigation
concerning the prolonged absence, complainant stated that she did not
go to lunch until 3:30. Based on that information, she was disciplined
by being charged eight minutes (3:17 to 3:25) of AWOL. The AWOL charge,
however, was not issued by the supervisor or the AMDO.
Regarding the fourth and final issue, the AMDO denied having persuaded
complainant's doctor to change her medical restrictions. She stated
that she has never spoken with complainant's doctor. According to her,
she periodically contacted the Injury Compensation Office to ascertain
whether any medical restrictions had been changed for anyone on light or
limited duty and that was how she learned that complainant was capable
of performing her regular duties without restrictions.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII case
alleging discrimination is a three-step process. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-803 (1973). See, Hochstadt
v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases). First, complainant must establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason proffered by the agency was a
pretext for discrimination. Id. at 256.
Physical Disability
Courts have adopted and applied the Title VII burdens of proof,
discussed supra, to disability discrimination. See Norcross v. Sneed,
755 F.2d 113 (8th Cir. 1985); Prewitt v. United States Postal Service,
662 F.2d 292 (5th Cir. 1981). In order to establish a prima facie case
of disability discrimination, complainant must prove, by a preponderance
of the evidence, that she was treated differently than individuals not
within her protected group, or that the agency failed to make a needed
reasonable accommodation, resulting in adverse treatment of complainant.
See Sisson v. Helms, 751 f.2d 991, 992-93 (9th Cir.), cert. denied,
474 U.S. 846 (1985).
As a threshold matter, the complainant must establish that she is
a "qualified individual with a disability" within the meaning of
the Rehabilitation Act. The Act's implementing regulation defines
"individual with disability" as a person who has, has a record of, or is
regarded as having a physical or mental impairment which substantially
limits one or more of that person's major life activities. 29 C.F.R. �
1630.2(g).<5>
Any impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner, or duration under which an individual can perform
a major life activity. 29 C.F.R. � 1630.2(j). The individual's ability
to perform a major life activity must be restricted as compared to
the ability of the average person in the general population to perform
the activity. Id.
Based upon the information contained within complainant's medical reports,
we find that complainant's medical condition (shoulder injury) is not
severe or limiting enough to conclude that she is an individual with
a disability within the meaning of the Rehabilitation Act. In those
reports, complainant's doctor stated plainly that she was capable of
returning to her regular work duties. According to information in
the file, complainant's only restriction was being allowed to perform
stretching exercises. In addition, there is no evidence from which
to conclude that the alleged discriminating officials regarded her as
disabled, nor is there evidence which indicates that she had a record
of being disabled. As such, we find that complainant cannot establish
a prima facie case of disability discrimination.
Sex Discrimination
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056
(May 31, 1990). In such cases, the inquiry shifts from whether the
complainant has established a prima facie case to whether she has
demonstrated by preponderance of the evidence that the agency's reasons
for its actions merely were a pretext for discrimination. Id.; see also
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
714-717 (1983).
In this case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
regarding the first issue, complainant's supervisor stated that
complainant never told him that it bothered her when he touched her
on the shoulder and as soon as he learned that it did, he stopped.
Regarding the second issue, the AMDO stated, and medical reports
confirmed, that when complainant was ordered t report to the OCR, she
was not under any medical restrictions. In addressing the third issue,
both alleged discriminating officials indicated that complainant was
counseled for leaving her work area without authorization, not for
performing her stretching exercises. They also stated that she was
not charged AWOL as alleged. Regarding the last issue, the alleged
discriminating official stated that she did not speak to complainant's
doctor concerning complainant's medical restrictions.
Because the agency has proffered a legitimate, nondiscriminatory
reason for the alleged discriminatory events, complainant now bears
the burden of establishing that the agency's stated reason is merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
In this case, complainant has failed to meet that burden.
Information in the investigative files indicate that complainant did not
respond to the agency's affidavit requests. The investigative report did
contain information which indicates that complainant was marked AWOL, a
charge that the alleged discriminating officials denied. The Commission
notes, however, that the it is plausible, in fact probable, that when
they (the alleged discriminating officials) submitted their affidavits,
they were not aware that complainant had been charged AWOL for leaving
her work station because neither of them was responsible for marking
her AWOL. Notwithstanding the lack of affidavits from complainant and
the issuing official (the person responsible for marking complainant
AWOL), there is enough information in the file from which to conclude
reasonably that complainant was charged AWOL for taking a prolonged lunch
break, not for leaving her work area to conduct stretching exercises.
Based on the foregoing, we find that complainant's evidence, or lack
thereof, is insufficient to establish that the reasons articulated by
the agency for its actions were a pretext for sex discrimination.
Reprisal
In order to establish a prima facie case of discrimination for a claim
of reprisal, complainant must show the existence of four elements: (1)
that she engaged in protected activity, e.g., participated in a Title
VII proceeding; (2) that the alleged discriminating official was aware
of the protected activity; (3) that she was disadvantaged by an action
of the agency contemporaneously with or subsequent to such participation;
and (4) that there is a causal connection between the protected activity
and the adverse employment action. Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), aff'd, 545
F.2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d 80,
86 (D.C. Cir. 1985); Burris v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
The alleged discriminating officials stated that, at the time of
the alleged incidents, they were not aware of complainant's prior
EEO activity. Because complainant failed to respond to the agency's
affidavit request, we find that she failed to establish the existence
of the second element. Because all four elements must be proven in
order to prove a prima facie case, we will not address whether or not
complainant succeeded in establishing the existence of the first, third,
and fourth elements.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the final agency
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:
January 24, 2000 Carlton M. Hadden,
DATE 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
1 Although complainant raised only reprisal in her formal complaint,
in her affidavits and during the investigation of the complaint, she
also raised sex and disability discrimination, which the agency
appears to have accepted as additional bases for her complaint. As
such, we will address those additional bases in this decision.
2 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.
3 Machine which sorts mail by optically scanning bar codes.
4 Complainant failed to respond to the agency's affidavit requests.
5 The October 1992 amendments to the Rehabilitation Act provide that the
standards used to determine whether Section 501 of the Rehabilitation
Act has been violated in a complaint alleging non-affirmative action
employment discrimination shall be the standards applied under Title
I of the Americans with Disabilities Act (ADA). 29 U.S.C. � 791(g).
The regulation at 29 C.F.R. � 1630 implements the equal employment
provisions of the ADA.