Sonjav.Hrobowski, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 31, 2000
01973951 (E.E.O.C. Aug. 31, 2000)

01973951

08-31-2000

Sonja V. Hrobowski, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Sonja V. Hrobowski, )

Complainant, )

) Appeal No. 01973951

v. ) Agency No. 1-J-601-1117-94

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

The complainant timely initiated an appeal to the Equal Employment

Opportunity Commission (Commission) from the final decision of the

agency concerning her allegation that the agency violated 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.<0>

The appeal is accepted by the Commission in accordance with 64 Fed. Reg.

37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue presented herein is whether the agency discriminated against the

complainant based on race (Black) and physical disability (injury to hip

and lower back) when she was denied training as a Mail Flow Controller.

BACKGROUND

The complainant filed a formal complaint in July 1994 in which she

raised the issue identified above. Following an investigation, the

complainant did not request an administrative hearing and the agency

issued a final decision in April 1997 finding no discrimination. It is

from this decision that the complainant now appeals.

During the period in question, the complainant was employed as

a Mailhandler at the agency's facility in Carol Stream, Illinois.

The record reveals that, in early to mid-1994, the complainant submitted

several requests for Mail Flow Controller training. According to the

complainant, these requests were denied on approximately six occasions

between February and July 1994. The complainant alleges that, during this

same period, another employee (Employee A, White) received the training

in question. The complainant also contends that her �temporary physical

limited duty status was used as a criteri[on] for the denial.�

According to the Manager, Distribution Operations (the Responsible

Official, RO), there were several reasons why the complainant's requests

were denied, the most significant being her poor attendance record.

Additionally, the RO explained that the complainant is the union steward

for the Mailhandlers, and that, as such, it would constitute a conflict

of interest for her to supervise employees she represented. Finally,

the RO stated that the complainant was unable to �walk up and down

the cat walk which lies along the sack sorter,� and that, because the

complainant was using a cane, it would have been difficult for her to

go up the stairs leading to the control tower.

ANALYSIS AND FINDINGS

Race

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. The complainant has

the initial burden of establishing a prima facie case of discrimination.

If the complainant meets this burden, then the burden shifts to the

agency to articulate some legitimate, nondiscriminatory reason for its

challenged action. The complainant must then prove, by a preponderance

of the evidence, that the legitimate reason articulated by the agency

was not its true reason, but was a pretext for discrimination. McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).

Initially, we find the complainant has established a prima facie case of

race discrimination. In so finding, we note that the complainant was

denied Mail Flow Handler training while Employee A, a nonmember of her

racial group, received this training. See Bundy v. Jackson, 641 F.2d 934,

951 (D.C. Cir. 1981).

Now that the complainant has established a prima facie case, the agency

has the burden of articulating a legitimate, nondiscriminatory reason

for the challenged action. Texas Dep't of Community Affairs v. Burdine,

450 U.S. 248, 254 (1981). The Commission finds, based on the testimony

of the RO, that the agency has met this burden. Specifically, the RO

articulated several reasons for denying the complainant the training,

including her poor attendance record and her position as the union

steward for the Mailhandlers.

At this point, the complainant bears the burden of establishing that the

agency's articulated reasons are a mere pretext for discrimination.

The complainant can do this either directly, by showing that a

discriminatory reason more likely motivated the agency, or indirectly,

by showing that the agency's proffered explanation is unworthy of

credence. Id. at 256.

The Commission finds the complainant has not established pretext.

In so finding, we note the complainant has not demonstrated that the

reasons articulated in support of the decision to deny her training

are unworthy of credence. Although the complainant argues that her

personnel file did not contain any attendance-related discipline, this

does not, by itself, establish that she did not have attendance problems.

Furthermore, the complainant has offered nothing which indicates that

the decision to deny her training was related to her race. Accordingly,

the Commission finds the complainant has not established that she was

discriminated against based on race.

Disability

The burdens of proof required in a disparate treatment claim brought

pursuant to the Rehabilitation Act are modeled after those used in

Title VII law. See Prewitt v. U.S. Postal Service, 662 F.2d 292 (5th

Cir. 1981). To establish a prima facie case of disability discrimination,

the complainant must demonstrate that: 1) she is an �individual with a

disability� as defined in 29 C.F.R. �1630.2(g);<0> 2) she is a �qualified

individual with a disability� as defined in 29 C.F.R. �1630.2(m); and

(3) the agency took an adverse action against her. Id. The complainant

must also demonstrate a causal relationship between her disability and

the adverse action.

An �individual with a disability� is defined as someone who: (1)

has a physical or mental impairment which substantially limits one or

more of such person's major life activities; (2) has a record of such

an impairment; or (3) is regarded as having such an impairment. 29

C.F.R. �1630.2(g)(1)-(3). �Major life activities� include functions

such as caring for one's self, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working. 29 C.F.R. �1630.2(i).

In this case, the complainant has presented no medical evidence in

support of her claim and, as such, has not demonstrated that she has an

impairment that substantially limits a major life activity. Moreover,

we note that the complainant has repeatedly characterized her condition

as temporary. In this regard, it is well-settled that �[t]emporary,

non-chronic impairments that do not last for a long time and that

have little or no long-term impact usually are not disabilities.�

Technical Assistance Manual on the Employment Provisions (Title I) of

the Americans With Disabilities Act, Chapter II, Page 5. Therefore,

the Commission concludes the complainant cannot establish that she has

an actual disability.

The Commission also finds insufficient evidence to conclude that

the complainant had a record of a substantially limiting impairment.

Finally, in considering whether the complainant was regarded as having

such an impairment, we note that the RO stated in his affidavit that

he was �aware of her disability.� This statement, by itself, does

not mean that the RO regarded the complainant as having an impairment

that substantially limited a major life activity. See Sutton v. United

Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Service,

Inc., 527 U.S. 516 (1999); Albertsons, Inc. v. Kirkingburg, 527 U.S.555

(1999). This is particularly true given the complainant's repeated claim

that her condition was temporary, and, in this regard, the RO may have

merely meant that he was aware of her temporary condition. For these

reasons, the Commission finds insufficient evidence to conclude that the

complainant was regarded as having a substantially limiting impairment.

Accordingly, the Commission finds the complainant has not established

that she is an �individual with a disability,� and, for that reason,

cannot establish that she was discriminated against based on disability.

CONCLUSION

Based on a review of the record and for the reasons cited above, it is the

decision of the Commission to AFFIRM the FAD and find the complainant has

not established that the agency discriminated against her as alleged.

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:

__08-31-00_____ _____________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

01 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.

02 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.