01A04472
09-18-2001
Grace Villias, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Grace Villias v. United States Postal Service
01A04472
September 18, 2001
.
Grace Villias,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A04472
Agency Nos. 4F-945-1115-96; 4F-945-1221-96; 4F-945-1131-96
Hearing Nos. 370-96-X2796; 370-97-X2291; 370-98-X2159
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her consolidated equal employment opportunity (EEO) complaints
of unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges she was discriminated against on the bases of
disability (plantar fascitis) and in retaliation for prior protected
activity (arising under the Rehabilitation Act and Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.). For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that complainant worked as a Distribution Clerk at
the agency's facility in Benicia, California. She filed three complaints
alleging the following:
(1) in December 1995, the agency failed to provide mats and a place for
complainant to elevate her foot, and her supervisor stated that if she
did not accept the latest job offer, she would be sent home;
(2) in May 15, 1996, she was given a "just cause interview" concerning
her whereabouts before an arbitration hearing held on May 14, 1996,
and in June 1996, she was issued a Notice of Suspension for irregular
attendance/unscheduled absences; and
(3) from February 1996 onward, the agency denied her reasonable
accommodation and misconstrued her medical limitations.
At the conclusion of the investigations, complainant received copies
of the investigative reports and requested a hearing before an EEOC
Administrative Judge. The Administrative Judge issued a decision without
a hearing, finding no discrimination, which the agency adopted as its
final decision. The Commission's regulations permit an Administrative
Judge to issue a decision without a hearing when she finds that there
is no genuine issue of material fact. On appeal, complainant, through
counsel, contends that the agency failed to respond to her discovery
requests and that the Administrative Judge repeatedly ignored the dispute.
Complainant identifies the following dispute as relevant:
the Benicia officials received notification of an arbitration decision
that a 7 day suspension was mitigated to a letter of warning. The reason
why this is important is because the suspension was to be expunged from
all records, but the suspension was used on 8 June 1997 [emphasis in
original] as prior misconduct for another suspension apparently after it
was to be expunged from the records pursuant to the arbitration decision.
Attachment 1 is [sic] the discovery requests. Our documentation indicates
the arbitration decision was mailed on 21 May 1997 to the Postmaster.
Attachment 2. We received a copy on 24 May 1997. The conflict in dates
is why discovery is important.
Complainant's Brief at 3. First, we cannot ascertain what "conflict
in dates" complainant is referencing or why discovery regarding the
alleged conflict would be relevant since the incidents at issue in
the instant complaints transpired in 1996. Second, we find that the
document identified as Attachment 1 is not a discovery request. Rather,
it is PS-Form 2564-A "EEO Request for Counseling" dated February 5,
1996. Third, the document identified as Attachment 2 is dated April
17, 1996 and is a Letter of Acknowledgment from an EEO Counselor to
complainant's counsel. It is not documentation indicating when the
arbitration decision was mailed to the Postmaster. The Commission finds
that complainant has failed to produce any evidence to substantiate her
contention that the Administrative Judge denied relevant discovery and
has failed to identify any relevant information that the agency omitted
from the report of investigation. Finally, based on a thorough review of
the record, we find no merit to complainant's contention that inadequate
EEO counseling prevented complainant from clearly identifying the bases
and the issues comprising her claims.
Further, for reasons other than those set forth in the Administrative
Judge's decision, the Commission finds that the issuance of a
decision without a hearing on these three complaints was appropriate.
After drawing all justifiable inferences in complainant's favor, the
Commission concludes that complainant failed to establish a prima facie
case of either disability discrimination or retaliation.
In order to establish a prima facie case of disability discrimination
in violation of the Rehabilitation Act, as a threshold matter,
complainant must establish that she is an "individual with a disability."
An individual with a disability is one who (1) has a physical or mental
impairment that substantially limits one or more major life activities,
(2) has a record of such impairment, or (3) is regarded as having such
an impairment. 29 C.F.R. � 1630.2(g). Major life activities include,
but are not limited to, caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 1630.2(i). Sitting, standing, lifting, and reaching are also
recognized as major life activities. Interpretive Guidance on Title I
of the Americans With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(i).
Complainant's identified impairment is plantar fascitis, more commonly
known as plantar warts. Complainant contends that she is substantially
limited in the major life activities of standing, walking, and working.
The major life activity of working should only be considered if an
individual is not substantially limited with respect to any other major
life activity. Interpretive Guidance on Title I of the Americans With
Disabilities Act, Appendix to 29 C.F.R. � 1630.2(j). Complainant does not
dispute medical evidence in the record which establishes that, during the
relevant time period, she was capable of standing and walking up to six
hours of an eight hour work day. Thus, we find that complainant is not
substantially limited in the major life activities of standing or walking.
To be substantially limited in the major life activity of working,
one must be precluded from more than one type of job, a specialized
job or a particular job of choice. Sutton v. United Airlines, Inc.,
527 U.S. 471 (1999). Complainant's restriction does not establish that
she was unable to work in a class of jobs or in a broad range of jobs
in various classes pursuant to 29 C.F.R. � 1630.(j)(3)(i). Thus, we
conclude that complainant was not substantially limited in the major life
activity of working. Moreover, there is no evidence in the record from
which we could infer that complainant had a record of a substantially
limiting impairment or that the agency regarded complainant as having
such an impairment. Accordingly, complainant's claim of disability
discrimination fails.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in
a reprisal claim, according with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), complainant may establish a prima facie case of
reprisal by showing that: (1) she engaged in a protected activity;
(2) the agency was aware of her protected activity; (3) subsequently,
she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 26, 2000). The Commission's policy on retaliation prohibits
any adverse treatment that is based on a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging in
a protected activity. See EEOC Compliance Manual Section 8, "Retaliation"
No.915.003 at pp. 8-13 (May 20, 1998). The causal connection may be shown
by evidence that the adverse treatment followed the protected activity
within such a period of time and in such a manner that a reprisal motive
is inferred. See Devereux v. United States Postal Service, EEOC Request
No. 05960869 (April 24, 1997).
There is no dispute that complainant, who, as of July 11, 1996, had filed
nineteen EEO complaints, engaged in prior protected activity of which
the responsible management officials named in these three complaints
were aware. Assuming all of the alleged adverse treatment to have
occurred, we agree with complainant that there was a temporal proximity
between the alleged adverse treatment and her protected activity.
However, complainant presents no evidence from which a fact finder
could infer that the manner in which the agency acted was motivated
by retaliatory animus, notwithstanding the temporal proximity shown.
See Nguyen v. City of Cleveland, 229 F.3d 559 (6th Cir. 2000) (holding
that temporal proximity alone may be insufficient to raise an inference
of retaliation in the absence of other evidence of causation).
In reaching this conclusion, we note that complainant, who is not an
individual with a disability within the meaning of the Rehabilitation Act,
was not entitled to reasonable accommodation of her medical restrictions,
either in the form of floor mats or time to elevate her foot. We also
note that all of the job offers proffered by the agency provided
complainant work within her documented medical restrictions. There is
no evidence that the agency misconstrued these limitations or that
complainant's failure to accept the offers would have left management
with any alternative but to send her home. Regarding the "just cause
interview" on May 15, 1996, complainant does not dispute that on May 28,
1996, she submitted a request for annual leave to cover her unscheduled
absence between 6:00 a.m. and 9:00 a.m. on May 14, 1996, the day of the
arbitration hearing. Finally, complainant fails to rebut the agency's
contention that the Notice of Suspension was issued as a result of
complainant's numerous irregular attendance and unscheduled absences
between January and March 1996. Accordingly, the nexus between the
alleged adverse treatment and complainant's prior protected activity is
insufficient to establish a prima facie case of retaliation. Therefore,
after a careful review of the record and for the reasons set forth above,
the Commission affirms the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 18, 2001
__________________
Date
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.