01a11435
10-18-2001
Anthony Kapp, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Anthony Kapp v. United States Postal Service
01A11435
October 18, 2001
.
Anthony Kapp,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 01A11435
Agency Nos. 4F900120295 & 4F900016198
Hearing Nos. 330-98-3380X & 340-99-3413X
DECISION
Anthony Kapp (complainant) timely initiated an appeal from a final agency
action concerning his 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. 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. Complainant
alleges he was subjected to retaliation for prior EEO activity (formal
complaints filed under Title VII and Rehabilitation Act) and discriminated
against:
(1) on the bases of disability (depression, unspecified) and race (Black)
when the uniform allowance for his carrier position was terminated
from July 1994 through August 1996 and his first-line supervisor (S1)
did not help him rectify the situation;
(2) on the basis of disability, race and sex (male) when he was denied
overtime from April 25, 1995 through July 15, 1995 by S1 because he
was not allowed to work on off-days in his carrier position;
on the basis of disability when he was directed to deliver two large
parcels for another carrier on July 15, 1995;
when he was issued a notice of suspension for seven calendar days on
September 22, 1995 and
when, between April 9 and April 25, 1998, he was assigned to drive a
postal vehicle containing a hazardous chemical.
For the following reasons, we VACATE and REMAND the agency's final order.
The record reveals that during the relevant time, complainant was employed
as a part-time flexible letter carrier at the agency's Crenshaw Station
in the Los Angeles, California District. Believing he was a victim of
discrimination, complainant sought EEO counseling and, subsequently,
filed two formal complaints on September 14, 1995 and July 20, 1998.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of disability, race or sex discrimination in regard to the majority of
the agency's actions, but found that complainant did establish a prima
facie case of sex discrimination in regard to the overtime issue. In so
finding, the AJ noted that a female carrier (CW1) supervised by S1 was
allowed to work on an off-day in overtime status. The AJ concluded,
however, that S1 articulated a legitimate reason for allowing CW1 to
work on an off-day, specifically, that the facility was understaffed and
complainant was not available for overtime on that day. The AJ noted
that complainant did not dispute the veracity of this explanation.
Turning to complainant's claims of retaliation, the AJ first found that
complainant failed to establish a prima facie case in regard to the
uniform or the overtime issues, but determined that
a prima facie case of retaliation in regard to the September 22, 1995
notice of suspension did exist. The AJ noted that this notice closely
followed complainant's EEO counselor contact in which he first raised
Issues 1-3 and that S1 was aware of this activity. The AJ went on to
find, however, that complainant did not present any evidence to rebut S1's
reasons for issuing the suspension, namely, a prior letter of warning
for unsatisfactory attendance and complainant's excessive absenteeism
and failure to report for work. The AJ noted that complainant did not
dispute that he used sick leave from July 18 - 21, 1995 and that he was
not at work between July 25 - August 8, 1995.
Finally, addressing Issue 5, the AJ determined that complainant did not
establish a prima facie case because there was no causal nexus between
complainant's 1995 EEO activity and the assignment of a postal vehicle
in 1998. The AJ noted that even assuming complainant established a prima
facie case, he did not establish that the reason for assigning him the
vehicle, i.e. that it was the vehicle assigned to complainant's route,
was a pretext for retaliation. The agency's final action implemented
the AJ's decision.
On appeal, complainant reiterates arguments made during the investigation,
noting, among other things, that he was absent from work due to illness,
and cites various doctor's letters in support of this position. He also
argues that he was never given a discussion about attendance, as was
his right, before more serious discipline was imposed.
The agency stands on the record and requests that we affirm its final
action implementing the AJ's decision.
ANALYSIS AND FINDINGS
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.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
After a careful review of the record, we find that the AJ erred when he
concluded that there was no genuine issue of material fact in this case.
For example, in regard to Issue 5, complainant alleged that a hazardous
chemical had spilled in his assigned vehicle and the agency refused to
properly clean it out or assign him a new vehicle due to his prior EEO
activity. S1 asserted that he did not believe a chemical had spilled in
the vehicle and that, nonetheless, the vehicle was cleaned and assigned
to other drivers before complainant was required to use it again.
In finding that there was no genuine issue of material fact in regard
to this matter, the AJ first found that complainant failed to establish
a causal connection between this incident and his prior EEO activity.
A review of the record reveals, however, that the investigation into
complainant's previous allegations of discriminatory behavior on the part
of S1 (Issues 1-3) was on-going at the time of this incident. Moreover,
S1's affidavit in response to this issue noted that �I do know that he
[complainant] is mental. He has filed numerous EEO's and OWCP claims....�
This is sufficient to establish an inference of retaliation.
In finding that complainant failed to establish retaliation, rather
than accept complainant's evidence as true, as an AJ is required to do
when determining whether a decision without a hearing is appropriate,
the AJ chose to credit the agency's evidence and disregard the evidence
adduced by complainant. The AJ relied on representations of management
officials that the vehicle was assigned to complainant because it was
the vehicle assigned to his route. It is true that complainant did not
dispute that the vehicle in which the hazardous materials were spilled
was his usual vehicle. However, he did dispute S1's claims that the
vehicle was cleaned out and other drivers were assigned to it before
complainant had to drive it again. The AJ ignored these disputes.
Furthermore, the AJ found that the notice of suspension was issued due
to complainant's unsatisfactory attendance and excessive absenteeism,
despite the fact that the record contains no competent evidence supporting
this explanation. In reaching this conclusion the AJ apparently relied
on the text of the notice of suspension itself. Complainant, however,
disputed this explanation, noting in a document attached to his affidavit
that on the dates mentioned in the notice of suspension, he was having
health problems and therefore used his sick leave legitimately to seek
medical care, as indicated in doctor's notes he provided to the agency.
Complainant argued that the suspension was therefore not motivated by
his use of leave, but by his prior EEO activity. Again, the AJ ignored
this dispute.
We note that the hearing process is intended to be an extension of the
investigative process, designed to �ensure that the parties have a fair
and reasonable opportunity to explain and supplement the record and to
examine and cross-examine witnesses.� See EEOC Management Directive
(MD) 110, as revised, November 9, 1999, Chapter 6, page 6-1; see also
29 C.F.R. �� 1614.109(d) and (e). �Truncation of this process, while
material facts are still in dispute and the credibility of witnesses is
still ripe for challenge, improperly deprives complainant of a full and
fair investigation of her claims.� Mi S. Bang v. United States Postal
Service, EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley
v. United States Postal Service, EEOC Request No. 05950628 (October
31, 1996); Chronister v. United States Postal Service, EEOC Request
No. 05940578 (April 23, 1995). In summary, there are unresolved issues
which require an assessment as to the credibility of S1 and complainant.
Therefore, judgment as a matter of law for the agency should not have
been granted.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission VACATES the
agency's final action and REMANDS the matter to the agency in accordance
with this decision and the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the Los Angeles District
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
October 18, 2001
Date