01995355
03-12-2002
Romona A. Rountree, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Romona A. Rountree v. United States Postal Service
01995355
03-12-02
.
Romona A. Rountree,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995355
Agency No. 1-G-787-0018-97
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant claimed that she was discriminated
against on the basis of disability (back injury) when on February 2, 3,
9, 28 and March 8, 16, 1997, she was harassed about going to physical
therapy and denied union representation.
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk at the agency's Austin, Texas facility.
The record reflects that in order to settle a dispute regarding treatment
of complainant's back impairment she was sent to an outside physician for
a third opinion. The doctor ordered complainant to complete a course of
physical therapy within thirty days. A note regarding this treatment was
sent to complainant's second line supervisor. Complainant's insurance
company, however, refused to cover the prescribed physical therapy
because it believed that complainant's back injury was work related, so
complainant did not attend. Complainant was asked by management on the
above listed six occasions the status of her physical therapy attendance.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on October 8, 1998.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final agency decision (FAD) without a
hearing. Complainant chose the latter option.
In its FAD, the agency concluded that complainant failed to establish that
she was an individual with a disability as defined by the Rehabilitation
Act. Specifically, the FAD held that complainant failed to demonstrate
that she had a physical impairment which substantially limited one or more
of her major life activities, that she had a record of such an impairment,
or that she was regarded as having such an impairment. Further, the FAD
maintained that the agency articulated a legitimate, nondiscriminatory
reason for its action, namely, that pursuant to a letter received by
management, complainant was ordered to complete physical therapy within
30 days. The agency maintained that complainant was questioned about her
physical therapy schedule in order to assure that she met the deadline.
Additionally, the agency indicated that union representation was not
needed for the meetings between complainant and management because no
disciplinary action was being initiated.
On appeal, complainant contends that she has been told by her physician
that her impairment is permanent and she is presently working in a
modified position in the light duty area. Complainant also contends
that the following major life activities have been affected by her
impairment: shopping for her family; experiences pain when lifting her
eight month old child; and she can not vacuum or mop a floor without pain.
The agency requests that we affirm its FAD.
It is well-settled that harassment in the workplace constitutes an
actionable form of discrimination under Title VII. Meritor Savings Bank
v. Vinson, 477 U.S. 57 (1986). Harassment of an employee that would
not occur but for the employee's race, color, sex, national origin,
age, disability or religion is unlawful if it is sufficiently patterned
or pervasive. Garretson v. Department of Veterans Affairs, EEOC Appeal
No. 01945351 (April 4, 1996); McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir 1985). The Commission's Enforcement Guidance: Vicarious
Employer Liability for Unlawful Harassment by Supervisor, EEOC Notice
No. 915.002 (June 18, 1999) identifies two types of such harassment:
(1) harassment that results in a tangible employment action; and (2)
harassment that creates a hostile work environment. Based on the facts
of this case, we will analyze this matter as an allegation of harassment
that creates a hostile work environment.
To establish a prima facie case of hostile environment harassment, the
complainant must show that: (1) she belongs to a statutorily protected
class; (2) she was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; and (4)
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile, or offensive work environment.
Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. � 1604.11.
For the purposes of this analysis, we will assume that complainant is an
individual covered by the Rehabilitation Act. Upon our review, we find
that complainant has not established a prima facie case of harassment
based on disability. We find that even assuming complainant had
established that the questions regarding her physical therapy schedule
were related to her impairment, she has not shown that the conduct
complained of was sufficiently severe or pervasive to the point where
it altered the complainant's employment and created an abusive working
environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17,21 (1993).
We note that management questioned complainant about her physical therapy
schedule because they had received notice that she was to complete this
course of treatment within thirty days. We find that the record reflects
that complainant was initially questioned by two different supervisors who
were not aware that the other had asked complainant about her physical
therapy attendance. Further, the record reflects that one of the
supervisors was not even aware of the complainant's specific impairment
or why she needed to go to physical therapy. Additionally, although the
record does not reflect that complainant was denied union representation,
we find that since the questions regarding her physical therapy schedule
were not disciplinary in nature, union representation was not needed.
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 FAD.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____03-12-02_____________
Date