01A02848
03-22-2002
Erlinda R. Marcelo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Erlinda R. Marcelo v. United States Postal Service
01A02848
3/22/02
.
Erlinda R. Marcelo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A02848
Agency No. 1F-942-0028-97
DECISION
Complainant timely initiated an appeal 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 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> The appeal is accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Modified General Clerk, PS-05 at the agency's San Francisco Bulk Mail
Center, in Richmond, California. Complainant sought EEO counseling and
subsequently filed a formal complaint on June 10, 1997, alleging that she
was discriminated against on the bases of national origin (Philippines),
sex (female), disability (right shoulder impingement syndrome), age
(D.O.B. 1/19/45), and reprisal for prior EEO activity when:
(1) from March 31, 1997 through April 18, 1997, she was harassed,
yelled at, and threatened by a Human Resources Specialist and by the
Injury Compensation Specialist;
the Injury Compensation Specialist failed to provide complainant with
a CA-8 form;
management failed to accommodate complainant with a limited duty job
offer in Oakland as opposed to Richmond; and
her leave was disapproved on April 17, 1997, April 21, 1997, and April
22, 1997 through July 15, 1997.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
(AJ) or alternatively, to receive a final decision by the agency.
Complainant initially requested a hearing with an Administrative Judge
of the Equal Employment Opportunity Commission (EEOC) but because of
illness, and complainant's related absence from work, the AJ remanded
the case to the agency for it to be held in abeyance until complainant
returned to work. In her Abeyance Notice the AJ told complainant that
she should request a hearing within 30 days of her return to work or her
case would be dismissed for failure to cooperate. Complainant returned
to work in April 1999, but failed to request that her case be reinstated
for a hearing. Consequently, on January 21, 2000, the agency issued
the final agency decision from which complainant files the instant appeal.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of disparate treatment. The agency also found
that complainant was given limited duty job offers within her medical
restriction; thus, it held that complainant failed to present a case
of failure to accommodate. Further, the agency held that complainant
failed to show a nexus between her prior EEO activity and the personnel
actions challenged in her EEO complaint. Accordingly, the agency
concluded that complainant failed to show that she was subjected to
discriminatory treatment.
On appeal, complainant contends that she was offered a limited duty
job offer in San Francisco on September 10, 1998, which she accepted in
settlement of the instant complaint and which she expects to be honored.
Complainant also notes that she was suffering from depression, due to
an earlier diagnosis of breast cancer, when she returned from work in
April 1999, and as a result, she forgot to request that her complaint
be reinstated for an administrative hearing. Moreover, complainant
stated that her limited duty assignment in San Francisco was terminated
and she requests that this job offer be reinstated in order to resolve
this complaint.
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
In its FAD, the agency does not question whether complainant is a disabled
employee as defined by the pertinent EEOC Regulations. Its finding
on this matter rests on its determination that it provided complainant
with a reasonable accommodation by offering her a job within her medical
restrictions at the Richmond Bulk Mail Facility.<2> The fact that the
agency did not provide complainant with a limited duty assignment in
Oakland, as she preferred, does not undermine the adequacy of the agency's
effort to accommodate her disability. In its Enforcement Guidance, the
Commission has indicated that �an employer may choose among reasonable
accommodations as long as the chosen accommodation is effective.� See
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, Number 915.002 (March 1,
1999), Question 9.
With respect to the other bases listed by complainant in her complaint,
the Commission affirms the agency's finding that complainant failed
to establish a prima facie case of discrimination. In this regard,
we note that in the absence of direct evidence of discrimination,
the allocation of burdens and order of presentation of proof in an
ADEA case is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979).
Complainant has the initial burden of establishing a prima facie case
of discrimination. A prima facie case of discrimination based on age
is established where complainant has produced sufficient evidence to
show that he is a member of a protected class by virtue of his age and
he was accorded treatment less favorable than that given to persons
otherwise similarly situated who are not members of his protected class.
Potter v. Goodwill Industries of Cleveland, 518 F. 2d 864 (6th Cir. 1975);
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
If complainant establishes a prima facie case, the burden of production
shifts to the agency to articulate a legitimate non-discriminatory
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 or retaliation.
Throughout the complaint process, complainant retains the burden of
proof to establish discrimination by a preponderance of the evidence.
Moreover, in an ADEA case, the ultimate burden remains on complainant to
demonstrate that age was a determinative factor in the sense that, �but
for� her age, she would not have been subjected to the action at issue.
See Loeb, 600 F.2d at 1003.
In the instant case, complainant did not give the name of any employees,
outside of her protected group, who received more favorable treatment
with respect to the challenged personnel actions. Nor did complainant
otherwise present evidence sufficient to establish an inference of
discrimination. To the extent that complainant is raising a claim of
harassment, the Commission notes that it has repeatedly found that
claims of a few isolated incidents of alleged harassment usually are
not sufficient to state a harassment claim. See Phillips v. Department
of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks
v. Health and Human Services, EEOC Request No. 05940481 (February 16,
1995). Assuming arguendo, that the incidents of alleged harassment raised
by complainant are true, we find that taken individually or as a group,
they were not sufficiently severe to unreasonably interfere with her work
performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
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
3/22/02
__________________
Date 1The 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.
2 Pursuant to the pertinent EEOC Regulation, it is �unlawful for
a covered entity not to make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified applicant or
employee with a disability, unless such covered entity can demonstrate
that the accommodation would impose an undue hardship on the operation
of its business.� See 29 C.F.R. � 1630.9.