Ester J. Morillo, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 24, 2000
01974276 (E.E.O.C. Jan. 24, 2000)

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.