01965021
10-08-1998
Patricia Scura, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency
Patricia Scura v. United States Postal Service
01965021
October 8, 1998
Patricia Scura, )
Appellant, ) Appeal No. 01965021
v. ) Agency No. 5-M-1320-92
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency )
DECISION
Appellant timely initiated an appeal to this Commission from a final
agency decision ("FAD") concerning her complaint of unlawful employment
discrimination, in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. and Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. �791 et seq. The appeal is accepted
in accordance with the provisions of EEOC Order No. 960.001.
ISSUES PRESENTED
The issues presented are whether appellant proved, by a preponderance
of the evidence, that she was discriminated against because of her color
(white), sex, national origin (American) or physical disability (neuritis
and tendinitis) when her supervisor allegedly: (a) singled her out for
harassment, including sexual harassment; (b) refused to accommodate her
disability on many occasions; (c) placed her on restrictive sick leave
on January 30, 1992; and (d) issued her a Letter of Warning ("LOW")
for irregular attendance/sick leave.
BACKGROUND
In 1985, appellant had bilateral surgery on her feet for calcium deposit
(bunions) on her great toes. Appellant joined the agency as a Mail
Handler in January 1990. In November 1991, appellant submitted a medical
certificate from her physician stating that she had been seen for the
same condition. Appellant was diagnosed as having tendinitis of both
feet, and her physician recommended that she be allowed to sit for 30
minutes if symptoms develop, that her standing and walking be limited
to two hours, and that she climb frequently. Appellant was placed on
light duty at the facility and, by January 1992, was assigned to wholly
sedentary rewrap duties. At that time, her physician recommended that
appellant work overtime only "as tolerated," that she be allowed to walk
for short periods when her foot cramps and be permitted to sit when her
foot falls asleep, that her standing and walking remain limited to two
hours, and that she climb frequently.
On September 5, 1992, appellant filed her instant EEO complaint.
The agency initially rejected the complaint as untimely filed. However,
on appeal, this Commission reversed the agency's rejection and remanded
the complaint for processing. See Scura v. United States Postal Service,
EEOC Appeal No. 01930935 (April 2, 1993). On March 30, 1994, the agency
issued a FAD finding no discrimination. Appellant timely appealed.
On review, this Commission found that the agency's investigation had
"focused solely" on the LOW (allegation (d)) and failed to address her
harassment allegations, including her allegation that she was harassed
for refusing the sexual advances of her supervisor. Accordingly,
this Commission vacated the FAD and remanded this matter for further
investigation pursuant to the Commission's Order. See Scura v. United
States Postal Service, EEOC Appeal No. 01943381 (July 20, 1995).
The record reflects that appellant alleges that her supervisor (a male
Asian/Pacific Islander of Filipino national origin) asked her out
to have drinks at a night club on two occasions, a few days apart.
In this regard, one of appellant's coworkers ("CW1," who was dating
appellant at the time) averred that the supervisor asked him what type of
music appellant liked; CW1 avoided responding. Appellant maintains that
after she declined the supervisor's invitations, he began harassing her.
One of the incidents of harassment most cited by appellant occurred in
early 1992, when the supervisor removed her stool while appellant was
at lunch. When appellant objected, the supervisor maintained that he
had done so because her medical restrictions permitting the use of the
stool had expired on January 13, 1991. However, the medical restriction
had been misdated and was not in fact due to expire until January 13,
1992. Appellant contends that it was obvious to everyone, including
the supervisor, that the restriction had been misdated and that he had
deliberately harassed her by taking away the stool. The record reflects
that appellant contacted her union steward and the stool was returned
within approximately 20 minutes.
Appellant also alleged that her supervisor harassed her by not allowing
her breaks, by stealing or hiding her stool, by not allowing her to
take her medications, and by ordering her to work past her limitations.
However, these claims are less specific as to the dates they occurred and
other details. Appellant's union steward stated that she "recall[ed]
that on one occasion possibly two, [appellant] reported to me that she
was being denied the use of a stool." The union steward did not recall
appellant mentioning that the supervisor had asked her out. (Appellant
filed a claim for workers' compensation benefits on the basis that her
employment had aggravated her bilateral foot condition. Appellant's
claim before the Office of Workers' Compensation ("OWCP"), also contained
these allegations. OWCP denied appellant's claim, finding that appellant
"has not produced any evidence to substantiate that [her supervisor]
removed her stool [with the exception of the one incident in early
1991] or [to substantiate] any of her other allegations." OWCP was not
persuaded that appellant had been required to work past her limitations.)
The record contains statements from a number of appellant's coworkers.
Several are brief (e.g.,"I ... was witness to the discrimination of [the
supervisor] to [appellant] as to her personal injuries" or "I ... was
a witness to the discrimination of [appellant] by [the supervisor who]
would order her to work past her limitations which it was obvious to me
that she could not perform the duties that he prescribed for her.") As
noted previously, CW1 stated that the supervisor had asked him what type
of music appellant liked. Another coworker stated that the supervisor
"made comments about the way [appellant] was dressed that was kind of
odd to me." Another coworker stated that, although other workers were
allowed to talk and come back late from breaks, the supervisor had chased
him out when he was talking to appellant.
The affidavits from these and other coworkers reflect that the supervisor
was not liked by his subordinates. It appears that the supervisor
originally came from the private sector and a number of his subordinates
complained that he set high quotas and high production standards
amounting to unfair labor tactics. Several subordinates (including
appellant) stated that the supervisor disliked regular employees and
preferred casual employees. The subordinates stated that the supervisor
favored the unassigned regular employees and the casual employees in
various ways, such as by allowing them to have Saturdays and Sundays as
scheduled off days and by allowing them to serve as Safety Captains. One
subordinate complained that the supervisor "moves his regular employees
around to other areas to make room for light duty employees [so that the
facility] is slowly becoming a MASH emergency tent." The subordinates
also complained that the supervisor used the television screens in the
control room to watch the employees in his area and that the screens
were not to be used for this purpose. One of these coworkers ("CW2,"
a Black male) received an LOW from the supervisor for leaving his area
and exceeding his break times.
The record reflects that appellant was issued the LOW on January
30, 1992. The LOW cited approximately 98.5 hours of unscheduled leave
which appellant had taken from October 16, 1991 through January 20, 1992.
(The record also reflects that in November 1991, appellant's father passed
away from a terminal illness.) Appellant grieved the LOW and, at Step 2
of the grievance, it was agreed that the LOW would be removed from her
record if her attendance improved during a six-month period beginning
April 9, 1992. However, appellant's attendance did not improve and,
thus, the LOW remained in her records.
Appellant was placed on restricted sick leave on July 26, 1993. This
required her to support all sick absences with medical documentation.
The restrictions were removed after appellant filed a grievance
challenging her placement on restricted sick leave.
While the Order contained in the Commission's prior decision instructed
the agency to place in the record copies of absence analysis records
for all employees who worked for the supervisor from July 1991 through
January 30, 1992, the agency states that such records are not maintained
by the agency. Testimonial evidence reflects that the supervisor issued
a 14-day suspension to a Black male for irregular attendance and another
Black male was issued an LOW for missing an assignment.
Pursuant to the Order contained in the prior decision, the EEO
Investigator requested that appellant provide additional information
regarding her allegations, such as information on the nature, severity
and expected duration of her physical impairment, details of and witness
to incidents wherein the supervisor failed to accommodate her impairment
or otherwise harassed her. Through her Congressman's office, appellant
replied that this information was contained in her formal complaint and
that she considered the "request as another crude attempt by the agency
to discourage her from pursuing her complaint."
In his affidavits, the supervisor denied harassing or discriminating
against appellant. While the supervisor avers that he in no way
sexually harassed appellant, and only dealt with her in a professional
and fair manner, he does not directly affirm or deny asking her out on
two occasions.
In its FAD dated May 15, 1996, the agency found that appellant was
not subjected to discrimination or harassment. On appeal, appellant
makes various contentions, including that the agency's supplemental
investigation was inadequate. Appellant contends that issuance of the
LOW was unjustified in light of her father's death and her other reasons
for being unable to schedule the leave in advance.
ANALYSIS AND FINDINGS
The Commission will first address appellant's contention that her
supervisor's actions (i.e. the alleged singling her out for harassment,
refusal to accommodate her disability, placement on restricted sick
leave and issuance of the LOW) were due to discrimination based on her
physical disability. Section 501 of the Rehabilitation Act of 1973, 29
U.S.C. �791 et seq., prohibits discrimination on the basis of disability
and requires agencies of the federal government to make reasonable
accommodation to the known physical or mental limitations of qualified
employees with disabilities. 29 C.F.R. �1614.203(b) and (c). One bringing
a claim of disability discrimination, whether it be disparate treatment
or a failure to accommodate, must first show that he or she is a person
with a disability under EEOC Regulations and the Rehabilitation Act.
A person with a disability is defined as one who has a record of, or is
regarded as having an impairment that substantially limits one or more
major life activities. 29 C.F.R. �1614.203(a)(1). 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. �1614.203(a)(3).
To establish a prima facie case of disability discrimination, appellant
must show that: (1) she meets the regulatory definition of a person with
a disability (see 29 C.F.R. �1614.203(a)(1)); (2) she is a qualified
person with a disability (see 29 C.F.R. �1614.203(a)(6)); and (3) she was
subjected to an adverse personnel action under circumstances giving rise
to an inference of discrimination. See Prewitt v. United States Postal
Service, 662 F.2d 292 (5th Cir. 1981). That is, appellant must make a
plausible showing that there is a nexus or causal relationship between
the disabling condition and the disputed adverse action. Bridges v. United
States Postal Service, EEOC Appeal No. 01891679 (January 24, 1990).
After a careful review of the record, the Commission finds that
appellant failed to establish that her physical impairment (tendinitis
of both feet and history of bilateral surgery for calcium deposit)
constituted a disability as defined by the Rehabilitation Act and the
Commission's Regulations. At the October 1993 OWCP hearing, appellant
was requested by the Hearing Examiner to "describe [her] condition now."
Appellant testified that her foot did not feel like it used to, that
she could not walk the distances she used to be able to or go running
every day like she used to do, and that she could not wear her high heels
very often, when she used to have closets full of them. At that time,
appellant was working on the docks and testified that she could do her
job every day, so long as she worked her pace. The Commission does not
find that appellant established that her impairment was of a permanent
nature or that it substantially limited a major life activity. Further,
the Commission does not find that appellant's placement on light duty
indicates that she was regarded as a person with a disability as defined
in the Commission's regulations. On appeal, appellant notes that,
on our prior remand, the Commission instructed the agency to "place in
the record information from appellant's physician regarding the nature
and severity of [her] impairment." Appellant complains that the agency
did not contact her physician to obtain such information, although the
record does contain appellant's medical and OWCP reports from the time
in question. The Commission notes that the first of the ten items of
information requested from appellant by the EEO Investigator was:
Provide information from you[r] physician regarding the nature and
severity of your physical impairment, duration or expected duration of
the impairment ... and the permanent or long term impact of or resulting
from the impairment. (Emphasis in original.)
Appellant did not provide the EEO Investigator with the requested
information, choosing to rest on her previously filed material.
Accordingly, the Commission is not persuaded that any deficiency in the
record preventing appellant from meeting her burden of proof is based
on the agency's failure to conduct a proper investigation.
The Commission next addresses appellant's contention that her supervisor
discriminated against her based on her color, sex and national origin when
he refused to honor her medical restrictions, placed her on restricted
sick leave and issued her an LOW. Disparate treatment is the most easily
understood type of discrimination. The employer simply treats some
people less favorably because of their race, color, national origin,
sex, religion, disability, age or in reprisal for prior EEO activity.
See International Brotherhood of Teamsters v. United States, 431 U.S. 324
(1977). The allocation of burdens and order of presentation of proof
in a Title VII case alleging disparate treatment discrimination is a
three step procedure: appellant has the initial burden of proving, by
a preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and appellant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
A prima facie case is not the equivalent of a finding of discrimination.
It is simply proof of actions taken by the agency from which
discriminatory animus may be inferred, because experience has proven that
in the absence of any other explanation, it is more likely than not that
those actions were bottomed on impermissible considerations. Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The elements for
establishing a prima facie case are not inflexible and must necessarily
vary with the factual circumstances and bases of discrimination alleged.
Having established that she is a member of the groups protected by Title
VII, appellant must next demonstrate that she was treated less favorably
than other similarly situated employees outside her protected groups.
While comparative evidence is usually used to establish disparate
treatment, appellant need only set forth some evidence of acts from
which, if otherwise unexplained, an inference of discrimination can be
drawn. Furnco Construction Corp. v. Waters, 438 U.S. 567, 567 (1978);
Moore v. City of Charlotte, N.C., 754 F.2d 1100 (4th Cir. 1985).
While the record reflects that non-White male employees were also
disciplined by the supervisor, and that numerous employees feel unfairly
treated by the supervisor, the Commission will assume for the purpose
of analysis that appellant has established a prima facie case of
discrimination on all bases.
Accordingly, the burden of production now shifts to the agency to
articulate some legitimate, nondiscriminatory reason for its action.
Texas Department of Community Affairs v. Burdine, 450 U.S. 867 (1984).
We find that the agency has met its burden of production, i.e. that
appellant's taking of over 98 hours of unscheduled leave in less than
three months prompted issuance of the LOW in January 1992 and that similar
attendance problems prompted her placement on restricted sick leave in
July 1993. The supervisor denied failing to honor appellant's medical
restrictions with the exception of the taking of her stool in early 1992.
Therefore, appellant now bears the burden of establishing that the
agency's articulated reason is a mere pretext for discrimination.
Appellant 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.
The ultimate burden of persuasion remains at all times with appellant.
Burdine at 253; United States Postal Service Board of Governors v. Aikens,
460 U.S. 711 (1983).
We find that appellant fails to meet her burden of proof. While appellant
contends that the circumstances surrounding the taking of her unscheduled
leave warranted compassion, rather than discipline, the record does
not indicate that her supervisor generally treated employees with
such compassion. Further, the record establishes that persons not
of appellant's color or sex were also disciplined by the supervisor.
Appellant also contends that the supervisor failed to honor her medical
restrictions by removing her stool on numerous occasions as well as by
failing to permit her to take her medication, rest her feet and work
within her limitations. However, for reasons similar to the OWCP,
the Commission finds that she failed to substantiate these allegations.
With the exception of the one taking of the stool in early 1992, appellant
did not provide sufficient details of these events. Appellant's union
steward averred that she was aware of the supervisor's removal of the
stool only on the one instance in early 1992, and "possibly" on one other
occasion. While some of appellant's coworkers state that she was made to
work past her limitations, these statements are conclusionary in nature
and fail to indicate knowledge of the precise nature of her limitations.
After a careful review of the record as a whole, the Commission is not
persuaded that appellant established that her supervisor treated her in
a disparate manner because of her color, sex or national origin.
The Commission next addresses appellant's contention that the complained
of actions nonetheless constituted harassment based on her color,
sex and national origin. To prevail on such a claim of harassment,
a complainant must show that: (1) she belongs to a protected group; (2)
she was subjected to harassment that was sufficiently severe or pervasive
to alter the conditions of employment and create an abusive or hostile
environment; and (3) the harassment was based on an impermissible factor
such as color, sex or national origin. See generally Taylor v. Department
of the Air Force, EEOC Request No. 05920194 (July 8, 1992). After a
careful review of the record, the Commission is not persuaded that
appellant has established that she was subjected to harassment based
on her color, sex or national origin. Rather, the record indicates
that the supervisor required that his subordinates meet high quotas
and production standards, carefully observed his subordinates working
habits and disciplined them for failure to comply with his standards.
While it is clearly established that the supervisor removed appellant's
stool on one occasion, appellant failed to establish by a preponderance
of the evidence that he did so on other occasions or that he otherwise
regularly failed to honor her medical restrictions. Further, as
previously discussed, the Commission is not persuaded that appellant
was subjected to disparate treatment when the supervisor placed her on
restricted sick leave or issued the LOW.
The Commission next turns to appellant's allegation that she was subjected
to sexual harassment. EEOC Regulations provide that harassment on
the basis of sex is a violation of Title VII. See 29 C.F.R. � 1604.11.
The U.S. Supreme Court has held that a violation of Title VII may be
predicated on either of two types of sexual harassment: (1) harassment
that conditions concrete employment benefits in return for sexual favors,
i.e., quid pro quo sexual harassment; and/or (2) harassment that, while
not resulting in an economic injury, is severe or pervasive enough to
create a hostile or offensive work environment. Meritor Savings Bank
F.S.B. v. Vinson, 477 U.S. 57, 62-67 (1986). In order to establish a
prima facie case of quid pro quo sexual harassment, appellant must show
that: (1) she belongs to a protected class; (2) she was subjected to
sexual harassment in the form of unwelcome sexual advances, requests for
sexual favors, or other verbal or physical conduct of a sexual nature;
and (3) the harassment affected tangible aspects of her employment
and the acceptance or rejection of the harassment was an express or
implied condition to the receipt of a job benefit or cause of a job
detriment. See Spencer v. General Electric Co., 894 F.2d 651, 658 (4th
Cir. 1990); DiIorio v. Department of Defense, EEOC Request No. 01941379
(November 22, 1994).
A complainant alleging sexual harassment under a hostile environment
theory must show that she satisfies the first two elements above, and
that the sexual harassment affected a term or condition of employment,
and/or had the purpose or effect of unreasonably interfering with her work
environment and/or creating an intimidating, hostile, or offensive work
environment. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The
Commission has held that in order to establish a case of harassment
that creates a hostile working environment, the harassment of which
appellant complains generally must be ongoing and continuous in order
to constitute unlawful discrimination. A few isolated incidents are
usually not sufficient to show harassment. McGivern v. United States
Postal Service, EEOC Request No. 05930481 (March 17, 1994); Vargas
v. Department of Defense, EEOC Request No. 05931047 (October 7, 1993).
Therefore, in assessing whether the alleged harassment affected a term,
condition or privilege of appellant's employment, the conduct at issue
must be viewed in the context of the totality of the circumstances,
considering, inter alia, the nature and frequency of offensive encounters
and the span of time over which the encounters occurred. McGivern,
citing Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir. 1988);
Gilbert v. City of Little Rock, 722 F.2d 1390, 1394 (8th Cir. 1993).
In quid pro quo cases, a single sexual advance may constitute harassment
if it is linked to the granting or denial of an employment benefit,
whereas hostile environment claims generally require a showing
of a pattern of offensive conduct unless the single incident is
"unusually severe." See EEOC Policy Guidance on Current Issues of Sexual
Harassment at 15-16 (March 19, 1990). Although the terms "quid pro quo"
and "hostile environment" sexual harassment are of limited utility, they
are useful in determining the threshold question of whether a complainant
can prove discrimination under Title VII. See Burlington Industries,
Inc. v. Ellerth, No. 97-282, 1998 WL 336326 (U.S. June 26, 1998).
The Commission has thoroughly examined appellant's contentions in
this regard, as well as the record as a whole, but finds no persuasive
evidence that appellant was subjected to discrimination under either
the quid pro quo or hostile environment sexual harassment theories.
In this regard, the Commission notes that it assumes for purposes of
analysis that appellant's supervisor in fact invited her out socially
on two occasions, that he asked CW1 what type of music appellant liked,
and that he commented on appellant's apparel. Viewing these allegations
in the light most favorable to appellant, the Commission is not persuaded
that such actions, in and of themselves, were sufficient to constitute
sexual harassment. First, the supervisor's actions (asking appellant out
socially on two occasions, inquiring about her preferences in music and
commenting to a third party on her apparel) were not so severe in and of
themselves as to have the purpose or effect of unreasonably interfering
with her work environment or otherwise creating an intimidating,
hostile or offensive work environment. Of course, if appellant could
establish that her supervisor treated her less favorably than others
because of her rejection of his social invitations, she could prevail
under the quid pro quo theory of sexual harassment. However, because
the Commission is not persuaded that appellant was subjected to unlawful
harassment or treated in a disparate fashion, she fails to establish
that the supervisor conditioned the benefits of her employment on her
submission to sexual advances.
CONCLUSION
Accordingly, based on a thorough review of the record and for the reasons
set forth above, it is the decision of the Commission to AFFIRM the FAD
and find that appellant was not subjected to the discrimination alleged.
STATEMENT OF RIGHTS-ON APPEAL
RECONSIDERATION (M1092)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Oct 8, 1998
________________ ___________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat