01981597
10-30-1998
Cheryl L. Long, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region), Agency.
Cheryl L. Long v. United States Postal Service
01981597
October 30, 1998
Cheryl L. Long, )
Appellant, )
) Appeal No. 01981597
v. ) Agency No. 1C-441-0036-97
) Hearing No. 220-97-5129X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Black) and reprisal
(prior EEO activity), in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant alleges she
was discriminated against when, on September 22, 1996, she was issued a
seven day suspension for unauthorized absence from assignment, failure
to follow instructions, and failure to maintain regular work schedule.
The appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the agency's decision is REVERSED and REMANDED.
The record reveals that during the relevant time, appellant was employed
as a PS-4 Mail Processor at the agency's Cleveland, Ohio Mail Facility.
Appellant alleged that her receipt of the above-referenced suspension from
her supervisor (S1) was motivated by discriminatory animus because the
agency unsuccessfully instituted disciplinary action against her in the
recent past, and because she did not commit the infractions addressed in
her suspension. Appellant further alleged that S1's decision to suspend
her was one of a series of actions which created a hostile environment
at the facility.
The agency's management official who instituted the disciplinary action
(SUP), indicated that she is appellant's supervisor, and that the
suspension was warranted for the reasons set forth in the suspension
letter. SUP indicated that the seven day suspension was reduced to
four days pursuant to the grievance process. SUP also indicated that
she has disciplined other employees previously, and provided the names
of two other employees, both of whom were Black and had not engaged in
prior EEO activity, to support her statement.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on December
19, 1996. At the conclusion of the investigation, appellant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Pursuant to 29 C.F.R. � 1614.109(e),
the AJ issued a Recommended Decision (RD) when appellant requested that
the AJ issue a decision without a hearing.
The AJ concluded that appellant failed to establish a prima facie case
of race discrimination because she failed to demonstrate that similarly
situated employees not in her protected class were treated more favorably
under similar circumstances. The AJ then concluded that appellant did
establish a prima facie case of reprisal when her prior EEO activity,
which SUP was aware of, occurred only six months prior to the issuance
of the suspension.
The AJ further concluded that the agency articulated legitimate,
non-retaliatory reasons for its actions, namely, that for the reasons set
forth in its suspension letter, appellant was suspended, and further, that
two other employees with no prior EEO activity had also been disciplined.
The AJ concluded, based on the existence of other employees similarly
disciplined who had not engaged in prior EEO activity, that appellant
failed to establish that more likely than not, the agency's articulated
reasons were a pretext to mask unlawful retaliation. The agency's FAD
adopted the AJ's RD.
On appeal, appellant contends that the AJ failed to consider that a
White male employee, whom she brought to the AJ's attention, was treated
more favorably under similar circumstances. Appellant also repeated
her allegations that the suspension was the latest in a series of acts
that created a hostile work environment. The agency did not respond,
and requests that we affirm its FAD.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The United
States Supreme Court has stated that summary judgment is appropriate where
the trier of fact determines that, given applicable substantive law, no
genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). An issue is "genuine" if the evidence is such
that a reasonable fact-finder could find in favor of the non-moving party.
Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). In the
context of an administrative proceeding under Title VII, summary judgment
is appropriate if, after adequate investigation, appellant has failed to
establish the essential elements of his or her case. Spangle v. Valley
Forge Sewer Authority, 839 F.2d 171, 173 (3d Cir. 1988). In response to
a motion for summary judgment, the trier of fact's function is not to
weigh the evidence and render a determination as to the truth of the
matter, but only to determine whether there exists a genuine factual
dispute. Anderson, 477 U.S. at 248-49.
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 judgement 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.
In finding no discrimination, the AJ relied solely on the representation
of a single agency witness, SUP, without considering substantial gaps in
the factual record and appellant's contrary representations. We note
that the AJ's decision accepted the supervisor's explanation that the
suspension was issued for the reasons set forth in the suspension letter,
even though no documents existed in the investigative file to substantiate
any of the reasons set forth in the suspension letter. Appellant has
denied that she committed the infractions set forth in the suspension
letter. Thus, the credibility of the agency management officials
responsible for the issuance of the suspension has been challenged.
We also note that the individual cited as the concurring official by SUP
did not provide an affidavit to the investigator. We further note that
two additional management officials signed the letter of suspension:
the Attendance Control Supervisor and the Concurring Official.<1>
Neither of these individuals provided affidavits to the investigator.<2>
We finally note that throughout the EEO process, appellant has alleged
that she has been supervised by a different supervisor, S1, and that
it was S1 who has harassed and discriminated against her. The record
does not contain an affidavit from S1, or anywhere indicate who S1 is
and what role, if any, S1 had in the issuance of the suspension letter.
We note that the hearing process is intended to be an extension of the
investigative process, designed to "ensur[e] that the parties have a
fair and reasonable opportunity to explain and supplement the record and
to examine and cross-examine witnesses." See the Commission's Management
Directive (MD-110), Chapter 6, page 6-1; see also 29 C.F.R. � 1614.109(b)
and (c). And as we recently noted to the same region of this agency,
"[t]runcation of this process, while material facts are still in dispute
and the credibility of witnesses is still ripe for challenge, improperly
deprives appellant 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).
Two additional aspects of this case warrant a brief discussion. First, in
examining the AJ's rationale for denying appellant's race discrimination
allegation at the prima facie stage, we note that even though the AJ found
that appellant failed to demonstrate that a similarly situated non-Black
employee was treated more favorably, the record demonstrates that only
Black employees were disciplined.<3> The facts as set forth thus far do
not necessarily compel the conclusion that appellant failed to establish
a prima facie case of race discrimination where the record demonstrates
the existence of a pattern of adverse actions against a protected class
of individuals.<4> Appellant's burden to establish a prima facie case is
not intended to be onerous, and where an agency management official has,
by her own admission, disciplined only Black employees, such evidence
would be sufficient, at the prima facie stage, to support an inference
that appellant was treated differently than non-Black employees.
Second, in reviewing the record, we observed that throughout the
processing of this complaint, appellant has alleged continuing harassment
by agency management officials. Appellant specifically alleged harassment
in her formal EEO complaint, referred to continuing harassment in her
investigative affidavit, and again referenced harassment in her appeal.
Although the agency did not formally accept the issue of harassment
based on race and/or reprisal in its acceptance letter dated January 10,
1997, we note that this is precisely the kind of issue which should have
been further developed by the agency's investigator and also during the
investigative portion of the hearing process by the AJ.
For all the foregoing reasons, we find that the AJ erred when he
issued a recommended decision without a hearing, and the final agency
decision which adopted the AJ's decision must be reversed and remanded.
We shall require, on remand, that the agency conduct an expedited,
supplemental investigation to fill in the many factual gaps in the
record. The investigator shall also investigate appellant's harassment
allegation and determine whether this allegation should be included as an
additional issue in the resolution of appellant's complaint. This case
shall then be referred to an Administrative Judge at the completion of
the supplemental investigation. Finally, and prior to the issuance of
a recommended decision, the AJ should again rule on appellant's request
for a decision without a hearing, pursuant to the standards set forth
herein, and in the MD-110, pages 6-7 and 6-8.<5>
Therefore, after a careful review of the record, including appellant's
contentions on appeal, we REVERSE the agency's final decision and REMAND
this decision to the agency to take the actions set forth in this decision
and ORDER below.
ORDER
The agency shall acknowledge to the appellant that it has received
the remanded complaint within thirty (30) calendar days of the date
this decision becomes final and advise appellant that it has ordered an
expedited supplemental investigation to be completed. The agency shall
cooperate with the investigator's requests for documents and affidavits,
and ensure that the investigation is completed within ninety (90) days
of the day this decision becomes final.
The investigator shall obtain affidavits from individuals including, but
not limited to, S1, the individual appellant believes is her supervisor;
the concurring official referred to by SUP, the supervisor who recommended
the suspension; and the two individuals who signed the letter of
suspension.<6> The investigator shall also obtain a new affidavit from
SUP, the individual who identified herself as appellant's supervisor.
These affidavits should address, and permit the parties to respond to,
appellant's allegations that she was discriminated against because she
was treated differently than similarly situated employees not in her
protected classes, and additionally, that the actions referred to in the
letter of suspension never occurred. The affidavits or statements shall
also address appellant's allegation that her suspension was retaliatory
in nature, and that it constituted one in a series of harassing actions
by agency management officials.
The investigator shall gather any documentary evidence tending to
corroborate the reasons for the suspension as set forth in the letter
of suspension. Such records shall include, but not be limited to,
time records indicating when appellant was sick or tardy, a copy of
the letter of warning for a safety violation dated September 10, 1996,
copies of relevant agency policies respecting progressive discipline, and
contemporaneous notes or other materials supporting the items identified
in "Charge No. 1" and "Charge No. 2." of the suspension letter.
The investigator shall gather documentary evidence of other suspensions
issued by the supervisor who issued appellant the suspension at issue.
Such documentary evidence shall include, but not be limited to, evidence
concerning the suspensions of the two comparators cited by the supervisor
in her affidavit, and evidence as to whether the White male comparator
cited in appellant's "Information for Pre-Complaint Counseling Form"
was involved in the altercation described in Charge No. 2, whether such
individual is similarly situated to appellant, and whether such individual
was suspended, and if not, why not.
Following the completion of the expedited, supplemental investigation, the
agency shall process the remanded complaint and completed investigation in
accordance with 29 C.F.R. � 1614.109 et seq., and request the appointment
of an EEOC AJ pursuant to 29 C.F.R. � 1614.109(a).
A copy of the agency's letter of acknowledgment to appellant, a copy of
the notice that transmits the investigative file, a copy of the completed
supplemental investigative report, and the notice of rights must be sent
to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. �� 1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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)(Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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. 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 (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 30, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 We note that the name of the individual who signed the suspension letter
as Concurring Official is a different individual than that individual
whom SUP identified in her affidavit as the Concurring Official.
2 We note that the first name of the Attendance Control Supervisor and the
SUP are identical, and their handwriting is similar, though the surname
of these individuals is different. We note that these individuals could
be the same person.
3 We note, however, that in the form entitled "Information for
Pre-Complaint Counseling," appellant provided the name of a White
male employee involved in the same incident for which she received a
suspension, but he, himself, was not suspended. No explanation exists in
the record or from the AJ about the veracity of appellant's contention,
or whether this White male employee is a comparator. On appeal,
appellant contends that the AJ informed her that he was not a comparator
because he worked in a different pay location. Appellant states that she
determined that during the relevant time, he did work in her pay location.
On remand, the agency shall ensure that the relevance of this White male
comparator is explored fully and completely.
4 In fact, the absence of non-Black comparators being treated more
favorably may be more difficult to establish when being treated more
favorably in this situation may mean that such individuals would not be
disciplined for similar rules infractions, and plainly, there would be
no record that the agency decided not to discipline non-Black employees.
5 We note that our reversal of the AJ's decision at this time does not
preclude a subsequent decision by an AJ that this case can be decided
without a hearing, so long as the AJ issuing such a decision ensures
that the standards articulated in this case, along with the cases and
regulations cited to herein, are properly considered when deciding
whether or not to decide this case without a hearing.
6 It is possible that SUP and the Attendance Control Supervisor are the
same individual. See supra n.2.