01984301
03-01-2002
Nora Armstead, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Nora Armstead v. United States Postal Service
01984301
03-01-02
.
Nora Armstead,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01984301
Agency Nos. 1F-903-1005-94
1F-903-1037-94
1F-903-1033-95
Hearing No. 340-95-3652X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaints of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether complainant has established that
the agency discriminated against her on the bases of race (Black), sex
(female), disability (carpal tunnel syndrome), and reprisal (prior EEO
activity)<1> when she was removed, reassigned from Maintenance to Mail
Processing, and harassed by her supervisor (the Supervisor) for submitting
forms pursuant to an Office of Workers' Compensation Program (OWCP) claim.
BACKGROUND
The record reveals that, during the relevant time period, complainant
was a Control Clerk in Maintenance Operations at the agency's Marina
Mail Processing Center in Inglewood, California. On December 8,
1993, complainant filed a claim with OWCP alleging that her emotional
condition was a result of harassment by the Supervisor. On March 1,
1994, complainant submitted medical documentation stating that she was
unable to work under the Supervisor or to have any contact with her.
The agency looked into providing complainant with a light duty job
under a different supervisor. It found only one position which was as
a Distribution Clerk in Mail Processing. Complainant was reassigned
to that position in March 1994. After three months, complainant
provided the agency with another medical statement indicating that she
could no longer work in Mail Processing due to carpal tunnel syndrome.
The agency provided complainant with a temporary light duty assignment
in the Tour Office.
On October 12, 1994, OWCP denied complainant's claim. Based on OWCP's
determination, the agency instructed complainant to return to her
former duty. Complainant continued to submit medical documentation
claiming that she was totally unable to work. On November 2, 1994,
by letter, the agency advised complainant of her options based on her
medical limitations. Accordingly, complainant elected for a reassignment
to the Clerk Craft. She subsequently provided medical documentation which
showed that she was unable to perform the duties of the job she accepted.
Finally, by letter dated March 24, 1995, the agency removed complainant
for failure to perform her duties.
Believing she was a victim of discrimination, complainant filed formal
EEO complaints with the agency on December 17, 1993, April 20, 1994 and
June 2, 1995, alleging that the agency had discriminated against her as
referenced above. At the conclusion of the investigations, complainant
received a copies of the investigative reports and, for each, requested a
hearing before an EEOC Administrative Judge (AJ). The AJ consolidated
the three EEO complaints and issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of discrimination in her termination based on race or sex. Specifically,
the AJ found that complainant failed to demonstrate that similarly
situated employees not in her protected classes were treated differently
under similar circumstances. The AJ then found that complainant did not
make her prima facie case of reprisal because she did not show a causal
connection between the protected activity and the adverse treatment.
Assuming, arguendo, that complainant did establish her prima facie case
of retaliation, the AJ found that the agency provided a legitimate,
nondiscriminatory reason for its action which complainant failed to show
was pretext. As to complainant's claim of discrimination based on her
alleged disability, the AJ found that she failed to establish a prima
facie case because, based on her own medical evidence, she was unable
to perform the duties of the position she had chosen as a reasonable
accommodation. Therefore, the AJ found no discrimination.
The agency's final decision implemented the AJ's decision. On appeal,
complainant contends that the AJ erred in issuing a decision without
a hearing. In particular, complainant claims that the AJ failed to
hold a pre-hearing conference on the three consolidated complaints.
Furthermore, complainant argues that the AJ improperly refers to the OWCP
decision to deny benefits to complainant. Finally, complainant asserts
that a careful review of the record would show that complainant was a
victim of a hostile work environment that continued until her wrongful
termination from the agency. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Summary Judgment
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court does not
sit as a fact finder. Id. The evidence of the non-moving party must
be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id. A disputed issue of
fact is "genuine" if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F. 2D 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
An AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Termination - Disparate Treatment
On August 1, 1996, the agency filed a motion with the AJ for Findings and
Conclusions without a hearing.<2> Complainant responded to the agency's
motion in an untimely manner providing conclusory statements in opposition
to the motion. Therefore, pursuant to 29 C.F.R. � 1614.109 (g), the
AJ issued his decision on summary judgment in favor of the agency.
Upon review of the record, the Commission finds that the AJ correctly
determined that there were no genuine issues of material fact and that
summary judgement was appropriate. The Commission determines that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws.<3> As to complainant's claim
of disparate treatment based on her termination, we note that she failed
to present evidence that any of the agency's actions were in retaliation
for her prior EEO activity or were motivated by discriminatory animus
toward her race, sex, and/or disability. We discern no reason to disturb
the AJ's decision as to complainant's claim regarding the termination
on the bases of race, sex, disability, and reprisal.
We note, however, that the AJ decision only addressed one of the claims
raised in complainant's three EEO complaints. Namely, the decision
failed to issue a finding regarding complainant's claims of harassment
and of failure to provide a reasonable accommodation. Therefore, the
Commission will address these aspects of complainant's claims.
Reasonable Accommodation
The Commission notes that complainant alleged that the agency failed to
provide her with a reasonable accommodation when she was reassigned to
Mail Processing. Furthermore, complainant contends that the failure to
provide her with a reasonable accommodation resulted in her removal.
Therefore, we find that the essence of her two complaints was that
the agency failed to provide her with an effective accommodation which
eventually resulted in her termination for failure to perform the duties
of her position. Accordingly, we shall address complainant's claim of
the reassignment and the termination together as a claim that the agency
failed to provide her an effective reasonable accommodation.
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. �1630.9.
As a threshold matter in a case of disability discrimination under a
failure to accommodate theory, the complainant must demonstrate that
she is an "individual with a disability."
Upon review of the record, the Commission finds that complainant
failed to establish a prima facie case of disability discrimination.
Clearly, the record indicates that complainant has been diagnosed
with carpal tunnel syndrome in her right and left wrists and stress.
Due to complainant's carpal tunnel, she experiences pain in her right
wrist which ranges from mild to moderate. Report of Investigation
(ROI), Medical Consultation dated October 29, 1994. Complainant also
noted that the pain �precludes all activity when it is severe and the
pain radiates to about [her] mid-forearm.� Id. Complainant also has
stiffness in her right and left shoulders as well as pain in her lower
back. Complainant's physician noted that due to her carpal tunnel, she
was restricted from heavy lifting over thirty pounds and repetitive use
of her right and left wrists. ROI, Physician's Note dated February 16,
1995. We find that complainant failed to show that her carpal tunnel
substantially limits her in a major life activity. Although she is
restricted from heavy lifting and repetitive use of her right and left
wrists, we find that complainant is not substantially limited in these
activities. Although the record indicates that when complainant's pain is
severe she is precluded from all activity, there is not enough evidence
to demonstrate that complainant is an individual with a disability.
In particular, the record does not contain information relating to what
activities are affected by complainant's pain, to what extent are the
activities affected, and the duration of complainant's preclusion from
these activities. Accordingly, the Commission finds, with respect to
her carpal tunnel, that complainant is not substantially limited in any
major life activity. Furthermore, there is no evidence in the record to
establish that complainant had a record of a disability or was regarded
as an individual with a disability with respect to her carpal tunnel.
Therefore, we find that she is not covered by the Rehabilitation Act.
As to stress, the record indicates that this condition is connected
with her Supervisor. As a result, the record indicates that complainant
complains of �nervousness, light headedness, blurred vision, dizziness,
tension, and sleeping difficulties.� ROI, Medical Consultation dated
October 29, 1994. The record also shows that complainant's only
restriction related to her stress is that she cannot have any contact
with the Supervisor. Upon thorough review, we conclude that complainant
has failed to show that this impairment substantially limits a major life
activity. We find that her restriction from contact with her supervisor
does not establish that she is substantially limited in the major life
activity of interacting with others. See EEOC Enforcement Guidance on the
Americans with Disabilities Act and Psychiatric Disabilities, EEOC Notice
Number 915.002, question 9 (March 25, 1997) (noting that restriction
from interacting with co-workers or a supervisor would not, standing
alone, be sufficient to establish a substantial limitation in that major
life activity). Furthermore, we find that this restriction does not
limit her in the major life activity of working. See 29 C.F.R. Part 1630
App. 1630.2(j) (stating that "an individual is not substantially limited
in working just because he or she is unable to perform a particular job
for one employer"). We also note that there is no evidence in the record
to establish that complainant had a record of a disability or was regarded
as an individual with a disability with respect to stress. Accordingly,
we find that she is not covered by the Rehabilitation Act and the agency
was under no obligation to provide her with a reasonable accommodation.
Harassment
It is well-settled that harassment based on an individual's race, sex,
disability or prior EEO activity is actionable. See Meritor Savings
Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim
of harassment under those bases, the complainant must show that:
(1) she belongs to the statutorily protected classes and/or engaged in
prior EEO activity; (2) she was subjected to unwelcome conduct related
to her membership in those classes and his/her prior EEO activity; (3)
the harassment complained of was based on race, sex, disability and/or
prior EEO activity; (4) the harassment had the purpose or effect of
unreasonably interfering with her work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is
a basis for imputing liability to the employer. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Upon review of the
record, we find that complainant failed to demonstrate that the alleged
harassment complained of was based on her protected classes and/or her
prior EEO activity. Accordingly, we find that she has not established
her claim of harassment.
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 agency's
final decision.
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
__03-01-02________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The record indicates that complainant filed previous EEO complaints
alleging abusive and disparate treatment by her supervisor, however, there
is no indication as to which statute complainant alleged was violated.
2 We note that a party may file a motion in support of summary judgment
with the AJ at least fifteen days prior to the hearing. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 7-14 (November 9, 1999). Accordingly, we find that the
agency's motion and the AJ's decision on the motion were appropriate.
3 On appeal complainant states that the AJ improperly referred to the
OWCP decision. The Commission upon review finds that complainant's claim
is without merit in that the AJ merely referenced the decision as part
of the background facts of complainant's case.