01982297
11-02-2001
Barbara A. Palmer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Barbara A. Palmer v. United States Postal Services
01982297
11/02/01
.
Barbara A. Palmer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01982297
Agency No. 4F-950-1072-96
DECISION
Barbara A. Palmer (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination on the bases of sex (female), reprisal (prior EEO
activity), and disability (depth perception), in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), 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 29 C.F.R. �1614.405.
For the following reasons, the agency's decision is AFFIRMED.
ISSUES PRESENTED
The issues on appeal are whether complainant was subject to discrimination
on the aforementioned bases when:
On December 8, 1995, her request for auxiliary route assistance (PS
Form 3996) was disapproved for no reason, she was asked to back up
her postal long life vehicle without a Spotter and was followed on her
route for no reason;
On December 9, 1995, she was not allowed to deliver her route and
had to stay in the office, resulting in her going home sick, and she
was not provided with a Form CA-2 (Notice of Occupational Disease and
Claim Compensation);
On December 11, 1995, she was refused a shop steward and not given
a reason;
On December 14, 1995, she was given an official discussion for taking
an extended lunch and her PS Form 3996 was disapproved;
On December 18, 1995, she was not allowed to clock into the station at
6:00 a.m. and someone followed her out on the street;
From December 8, 1995, she requested copies of her PS Form 3996 every
day and only received one copy;
From December 27, 1995, through January 5, 1996, she did not receive
her Christmas gift certificate;
From December 27, 1995, through January 5, 1996, a co-worker left
disparaging remarks concerning her in plain view, carriers made loud
disparaging remarks about her, and management took no action;
From January 3, 1996 through January 4, 1996, the same person (as on
December 18, 1995), followed her on the street. Complainant reported
this incident to the union and the Postal Inspectors, but nothing
was done.
BACKGROUND
This case has followed a somewhat convoluted procedural path. Upon
receipt of complainant's formal complaint, the agency issued a FAD
accepting some of the allegations and dismissing others. Specifically,
the agency in its first FAD dated June 27, 1996 (hereafter FAD #1)
accepted allegations 2 and 8 and dismissed all of the other allegations
cited above for failure to state a claim. Complainant appealed FAD #1
to the Commission and in a previous decision, the Commission remanded
the dismissed allegations to the agency for consideration of whether
complainant was raising a claim of harassment. See Palmer v. United
States Postal Service, EEOC Appeal No. 01965305 (August 27, 1997).
In that prior decision, the Commission found that allegations 5 and 7
above stated a cognizable claim. Moreover, the Commission directed
the agency to either accept all the other dismissed allegations for
investigation or to issue a new decision dismissing the remanded
allegations for failing to state a claim of harassment. As a matter
of administrative convenience, the agency decided to investigate all of
the remanded issues instead of issuing a new FAD.
The record reveals that at the time complainant filed the instant
complaint, she was employed as a Carrier Technician, at the agency's
Aptos Post Office in Aptos, California. In her affidavit, complainant
contends that it was not until she engaged in protected activity that
she began having problems with management at the Aptos Post Office.
She contends that she was denied reasonable accommodation while other
disabled employees were accommodated by management. Complainant also
contends that her request for auxiliary help, which was made by means
of PS Form 3996 (hereafter 3996) was routinely disapproved, while the
3996's of other Carriers were routinely approved. Further, complainant
contends that she had a daily debate with the floor supervisors regarding
her volume of mail while the supervisors accepted other Carriers' mail
volume statistics without question.
On December 8, 1995, complainant averred that the 204-B (hereafter
Acting Supervisor) gave her a direct order to park her long life
vehicle (hereafter LLV) which jeopardized her safety and disregarded
the medical documentation on file. On that same date, complainant also
contends that she was subject to two street observations by the Acting
Supervisor without him giving her a street supervision form. According to
complainant, the Acting Supervisor's failure to give her this form was
contrary to the agency's policy to conduct street supervision in an open
and above board manner. On December 9, 1995, complainant argues that the
Acting Supervisor arbitrarily took away her assigned route. Additionally,
complainant contends that it took her three days after making a request,
to receive a union representative, and it also took her two days after
requesting a Notice of Occupational Disease and Claim Compensation form,
(hereafter CA-2 form) to receive a copy of that document.
In her statement to the Investigator, complainant also challenged
an official discussion she received from her supervisor December
14, 1995 for taking a 55 minute lunch. According to complainant,
a comparative employee who was having lunch with her that day was not
similarly disciplined. Moreover, complainant contends that unlike other
employees, she is required to make her request for union representation
in writing. Moreover, complainant contends that other Carriers were
allowed to start their shifts at 6:00a.m. and work any needed overtime,
while the Postmaster would not allow her to start her shift at 6:00a.m.
In this regard, complainant asserts that her revised schedule requests
were routinely disapproved by management while the requests of other
Carriers were routinely approved.
Complainant also alleged that the Postmaster's failure to give her a
$10.00 gift certificate as a Christmas bonus was a form of discriminatory
treatment. Moreover, complainant alleged that the supervisors at the
Aptos Post Office allowed other employees to make derogatory statements
about her. Further, complainant stated that between December 18,
1995 and January 3, 1996, the Acting Supervisor's Filipino friend (a
non-postal employee) would regularly show up behind her as she had lunch
or as she delivered her route. In this regard, complainant stated that
the Acting Supervisor had a history of violence both on and off the job
and she was afraid when she reported this activity to management and it
took no action.
In responding to complainant's allegation of discrimination, the
Postmaster (no disability and no prior EEO activity) denied knowledge
of complainant's prior EEO activity. The Postmaster also averred that
she was aware of complainant's depth perception problem, but she did
not consider it as limiting any of complainant's major life activity.
Nonetheless, the Postmaster testified that she provided complainant with
a Spotter as a form of accommodation, as well as training in parking
her LLV, which were the accommodations recommended by complainant's
optometrist.<2> With respect to the CA-2 Form, the Postmaster asserted
that complainant initially asked for the form on a Saturday and that
neither the supervisor or the union representative could find a copy of
the form at the time. The Postmaster added that on the following Monday,
complainant was given a copy of the form.
Addressing complainant's allegation that she was subject to disparaging
remarks, the Postmaster stated that she was unaware of these incidents,
but that once they were brought to her attention, she held stand-up talks,
directing her employees not to talk about their co-workers. With respect
to the Christmas bonus, the Postmaster stated that complainant, along
with four other employees, was not present when she initially handed
out the bonuses, but that a gift certificate was subsequently mailed to
complainant by certified mail. In conclusion, the Postmaster averred that
she did not take any retaliatory action against complainant. The Acting
Supervisor (no disability and no prior EEO activity) also testified on
behalf of the agency. He averred that he was aware of complainant's
disability because she told him about it. As a form of accommodation
the Acting Supervisor averred that he allowed complainant to stay in
the office and case mail rather than go out on her route.
At the conclusion of the investigation, the agency informed complainant
of her right to request a hearing or a final agency decision. By letter
dated January 3, 1998, complainant requested a FAD without a hearing.
In a FAD dated January 18, 1998 (hereafter FAD #2), the agency found that
complainant was not subjected to discriminatory or retaliatory treatment.
Specifically, the agency held that complainant failed to establish a
prima facie case of sex and reprisal discrimination because she failed
to show that she was subject to disparate treatment. Moreover, the
agency determined that there was no record that complainant was disabled
or perceived as being disabled. Further, the agency determined that
complainant's depth perception problem did not substantially limit any
of her major life activities. In the event that complainant met the
definition of a disabled employee, the agency held that it provided
her with reasonable accommodation in the form of a Spotter. Further,
the agency held that complainant failed to state a claim regarding the
extended lunch allegation because it was not a form of disciplinary
action. Relatedly, the agency also determined that complainant did
not establish that she was subjected to a hostile work environment.
In this regard, the agency found that none of the remanded issues viewed
individually or in combination with each other was sufficiently pervasive
to give rise to a claim of harassment based on a hostile work environment.
CONTENTIONS ON APPEAL
Complainant contends that the agency did not properly investigate the
remanded issues as was ordered by the Commission's decision in Appeal
No. 01965305 (August 27, 1997). Moreover, complainant contends that
she established a prima facie case of discriminatory and retaliatory
treatment. In this regard, complainant asserts that the Acting Supervisor
admitted in his affidavit that he was aware of her disability and that
he considered her to be a disabled employee. Complainant also states
that she established a prima facie case of reprisal because she worked
at the Aptos Post Office for a number of years without incident until
she engaged in protected EEO activity. Complainant also contends that
management's retaliatory action was directly evident based on the number
of times she was required to file EEO complaints based on the same issues,
but with varying degrees of intensity. Further, complainant argues that
the record evidence is supportive of a finding of discrimination because
the reasons proffered by management for its actions are contradictory
and unsupported by any documentary evidence. Finally complainant argues
that she was subject to a hostile work environment due to harassment
because there is medical evidence in the record showing that she was
diagnosed as suffering from emotional stress by her physician.
In its appeal statement, the agency indicates that it stands by its FAD
and it requests that the Commission affirm it.
ANALYSIS AND FINDINGS
It is apparent that although the Investigator collected documentary
evidence on all of the issues remanded by the Commission in its previous
decision, it only collected testimonial evidence from its managers
on issues 2 and 8 above. In FAD #2, the agency indicated that it was
dismissing all of the other issues because they did not establish a claim
of harassment. This is somewhat inconsistent with the Commission's prior
finding that issues 5 and 7 did state cognizable claims of discrimination
in and of themselves. Rather than remand this case to the agency once
again for collection of more testimonial evidence, the Commission finds
that by examining the record as a whole, including statements made
by the responsible management officials to the EEO Counselor, it has
sufficient information to render a decision on all the issues cited above.
Accordingly, we will examine below whether complainant prevailed on her
claim that she was subject to an hostile work environment, as well as
sex discrimination and reprisal in relation to all of the challenged
personnel actions listed in her original formal complaint.
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant to
initially establish that there is some substance to his or her allegation
of discrimination. In order to establish this burden, complainant
must establish a prima facie case of discrimination. McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). This means that complainant must
present a body of evidence such that, were it not rebutted, the trier
of fact could conclude that unlawful discrimination did occur.
If complainant has established a prima facie case, the burden
of production shifts to the agency to articulate a legitimate
nondiscriminatory reason for the adverse employment action. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981).
If the agency articulates a reason for its actions, the burden of
production then shifts back to complainant to establish that the
agency's proffered explanation is pretextual, and that the real reason
is discrimination. Throughout, complainant retains the burden of proof
to establish discrimination by a preponderance of the evidence.
Complainant may establish a prima facie case of sex discrimination by
showing that: (1) she is a member of a protected class; and (2) she
was accorded treatment different from that given to persons otherwise
similarly situated who are not members of her protected group.
See Potter v. Goodwill Industries of Cleveland, Inc., 518 D.2d 864,
865 (6th Cir. 1975). A complainant may also set forth acts that if
otherwise left unexplained, an inference of discrimination may be drawn.
See Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
A prima facie case of discrimination based on disability is established
where complainant has produced sufficient evidence to show that (1) she
is a �person with a disability� for purposes of the Rehabilitation Act,
as defined in 29 C.F.R. � 1630.2(g); (2) that she is a �qualified person
with a disability,� in that she is qualified for, and can perform, the
essential functions of the position she holds or desires with or without
reasonable accommodation, as specified in 29 C.F.R. � 1630.2(m); and
(3) that she received an adverse employment action as a result of his
disability.<3> Complainant also must demonstrate a causal relationship
between her disabling condition and the agency's reason for the adverse
action. Prewitt v. United States Postal Service, 662, F.2d 292 (5th
Cir. 1981)
Moreover, complainant may 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
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a
reprisal claim, and in accordance 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), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or 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 25, 2000).
Allegation of Disability Discrimination
Based on our review of the record, the Commission finds that complainant
did not submit sufficient evidence to show that she is a disabled
employee. In a medical report received by the agency in June 1995,
an optometrist from a Pearle Vision Care facility indicated that
complainant's depth perception was four times worse than normal.
He also noted that complainant's ability to operate a motor vehicle
may be slightly impaired. (14a/1)<4> In a subsequent report issued
on July 5, 1995, the same optometrist noted in reference to the June
report that �[a]lthough the note in question poses the possibility
that her decreased depth perception may affect her driving ability,
it does not say that any vision related driving tests were performed at
her eye exam; therefore making the last two sentences of the note mere
speculation....Occupationally, it would be reasonable to assume that
any additional driving practice with postal trucks in a safe and secure
environment may help improve her confidence and her ability to operate
this type of vehicle.� (14b/1)
Additionally there is a medical certificate dated December 14, 1995,
in which the physician noted that complainant had a �mild abnormality
of her depth perception that might interfere with her ability to back a
LLV into a confined space.� (14c/1) Moreover, we find that although the
Acting Supervisor responded affirmatively to the close ended question of
whether he was aware of complainant's physical disability, it is clear
from reading his entire statement that he did not regard complainant
as a disabled employee and that he was merely restating complainant's
representation to him. In response to a subsequent interrogatory
from the Investigator, the Acting Supervisor commented on what limits
complainant's �disability� had on her major life activities, �she claims
that she has a problem on [sic] depth perception and she can't back-up
the vehicle.� Affidavit C In summary, the Commission finds that based
on the record evidence, complainant is not disabled, she does not have
a record of disability and she was not regarded as a disabled employee.<5>
Allegation of Sex Discrimination
With respect to the issues where there is no dispute that complainant
raised a cognizable claim, (i.e., issues 2, 5, 7 and 8), the Commission
finds that complainant was successful in establishing a prima facie case
of sex discrimination. In this regard we note that except for allegation
#7 which deals with the $10.00 gift certificate, the agency did not give
the names of any comparable employees who were similarly treated.
Allegation of Reprisal
We disagree with the agency's finding that complainant failed to
establish a prima facie case of reprisal. The record establishes that
complainant served as the EEO Representative for a co-worker who filed a
formal complaint in early 1995, and which was settled on April 5, 1995.
Moreover, we note that complainant filed a formal complaint on July 10,
1995, against the managers of the Aptos Post Office. We do not find to
be credible the testimony of the Postmaster and the Acting Supervisor
that they were unaware of complainant's prior EEO activity, given that
the prior complaints were filed against them. Moreover, we note that
the Postmaster explained her failure to provide documents requested
by the Investigator in this case on the grounds that the documents had
already been provided in relation to another EEO complaint. In fact,
in her summary report, the EEO Investigator determined that management
was aware of complainant's prior EEO activity.
In light of our finding that complainant established a prima facie
case of sex discrimination and reprisal, we will review the reasons
articulated by the agency for the challenged actions. In responding to
complainant's allegations of discriminatory treatment, the Postmaster
testified with respect to issue # 2, that complainant was not provided
a CA-2 form when she initially asked for it because it was a Saturday,
but she was given a copy of the form the following Monday. The Acting
Supervisor addressed the same issue by noting that because complainant
claimed that she was unable to back up her vehicle on December 8, 1995,
he felt that it was in complainant's best interest, as well as in the
interest of public safety, that complainant remain in the office and
case mail on December 9th. Once complainant reassured the Postmaster
that she was able to drive safely, and submitted an updated statement
from her physician indicating that her depth perception only limited her
ability to park in confined spaces, she was allowed to resume her route.
With respect to allegation #5, the Postmaster told the EEO Counselor that
complainant would have been allowed to clock in at 6:00 a.m. on December
18, 1995, if she would have completed a revised schedule and stated an
appropriate reason. There is no record that complainant submitted the
requested revised schedule form. Moreover, the Postmaster averred that
on prior occasions she had asked complainant to come in at 6:00 a.m. and
complainant refused. Addressing allegation #7, the Postmaster testified
that complainant was not given the $10.00 gift certificate because she
was on annual leave that day and on extended sick leave thereafter.
Nonetheless, the Postmaster averred that complainant's gift certificate
was mailed to her and she presented a certified mail receipt showing
that complainant signed for the gift certificate on February 14, 1996.
With respect to allegation #8, the Postmaster testified that she was not
aware that complainant's co-workers made disparaging remarks until long
after the incidents. Once this matter was brought to her attention,
the Postmaster testified that she held stand up talks instructing the
Carriers not to talk about other employees.
Based on the above discussion, we find that the agency articulated
legitimate nondiscriminatory reasons for the challenged personnel actions.
Because the agency articulated legitimate nondiscriminatory reasons for
the challenged actions, complainant must demonstrate that these reasons
are pretextual and/or that the agency was motivated by discriminatory
animus. In her effort to show pretext, complainant submitted statements
from her Shop Steward and from several co-workers from the Aptos Post
Office stating that employees regularly made derogatory remarks about
complainant in the presence of the responsible management officials
and nothing was done about it. In fact, two witnesses averred that the
Acting Supervisor and a former Supervisor of Customer Services routinely
participated in gossip and jokes putting down complainant along with
their subordinate employees. (13a thru 13m). To the extent that these
statements are true, the Commission finds that it is unfortunate, but
these statements appear to be due to an ongoing personality conflict
between complainant and her supervisors and co-workers rather than due
to any invidious discriminatory animus.<6> See Hartsell v. Duplex
Production Inc., 123 F.3d 766 (4th Cir. 1997) (Court held that not
everything that makes an employee unhappy creates a federal cause of
action. Discrimination statutes prohibit only harassing behavior that
is directed at an employee because of their protected bases).
Allegation of Hostile Work Environment
With respect to the other allegations of discriminatory treatment, the
question is, whether if they are considered individually or in combination
with other allegations raised in this complaint, they created a hostile
work environment because of complainant's prior EEO activity or because
of her sex. In determining whether an objectively hostile or abusive
work environment existed, the trier of fact should consider whether a
reasonable person in the complainant's circumstances would have found
the alleged behavior to be hostile or abusive. Even if harassing conduct
produces no tangible effects, such as psychological injury, a complainant
may assert a Title VII cause of action if the discriminatory conduct
was so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22,
1995)( citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993)),
req. for recons. den. EEOC Request No. 05970995 (May 20, 1999). Also,
the trier of fact must consider all of the circumstances, including the
following: the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's
work performance. Harris, 510 U.S. at 23.
Based on the above discussion, we find that complainant did not raise
sufficient evidence to show that she was the victim of a hostile work
environment. Complainant succeeded in showing that the managers and
supervisors at the Aptos Post Office behaved poorly towards her at times,
but none of the supervisors' actions were severe enough or pervasive
enough to have interfered with complainant's ability to do her work.
Moreover, the Commission finds that none of the challenged personnel
actions were taken because of any of complainant's protected bases.
As we stated in a prior decision involving complainant and postal
management, �the numerous allegations cited herein were the product
of serious personality conflicts which resulted in petty, immature and
unprofessional behavior in the workplace.� See Palmer v. United States
Postal Service, EEOC Appeal No. 01902801 (October 29, 1990).
After a careful review of the record, the Commission finds that
complainant was not subject to sex discrimination or reprisal.
Accordingly, the agency's finding of no discrimination is AFFIRMED.
CONCLUSION
Therefore, the agency's finding of no discrimination with respect to
the challenged actions is AFFIRMED.
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
11/02/01
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 A Spotter is someone who would stand behind complainant's vehicle
and guide her into the parking space. According to the Postmaster,
the agency provided complainant with a Spotter for six months.
3 As a threshold matter, complainant must establish that she is a
�qualified individual with a disability� within the meaning of the
Rehabilitation Act. An �individual with disability� is 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, i.e., caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
See, 29 C.F.R. � 1630.2(j).
An 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.
4 Citations in this decision refer to exhibit and page numbers (ex/p)
in the report of investigation.
5 In a previous case, the Commission considered the same evidence
presented to us today on this matter, and we ruled that complainant is
not a disabled employee. See Palmer v. United States Postal Service,
EEOC Appeal No. 01965304 (September 16, 1998).
6 As evidence of derogatory statement, it was stated that a co-worker
called complainant a �bimbo� in the presence of her supervisors and
nothing was done to the employee who made the statement. As another
example of derogatory statements complainant submitted a copy of a note
in which her relief carrier stated that �It's been like that for 3 months.
It took you long enough.�