01A10581
05-03-2001
Christine Schmidt, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Christine Schmidt v. United States Postal Service
01A10581
May 3, 2001
.
Christine Schmidt,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10581
Agency No. 4-J-480-0056-98
Hearing No. 230-99-4166
DECISION
Complainant timely initiated an appeal from a final agency action
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. 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 she was discriminated against on the bases of race (white), sex
(female), disability (perceived), and reprisal (prior EEO activity)<1>
when she was denied her request for reinstatement. For the following
reasons, we REVERSE and REMAND the agency's final action.
The record reveals that Complainant was employed at the agency's Royal
Oak General Mail facility in April 1985. In April 1992, complainant
transferred to the Marine City Post Office pursuant to a settlement
agreement resolving an EEO complaint she filed against individuals
within the Royal Oak General Mail facility. In September 1992, she
resigned from the agency due to the needs of her business. On August
12, 1994, April 4, 1996, June 3, 1996, and March 17, 1997, complainant
requested to be reinstated with the agency at the Royal Oak General
Mail facility. On March 20, 1997, the agency notified her that it had
reviewed her paperwork and denied her request for reinstatement due to
her attendance record. Report of Investigation, p. 62. On November
1, 1997, complainant notified the agency again that she wished to be
reinstated and that she believed her prior denial was in retaliation
of her prior EEO activity. On November 17, 1997, the agency denied her
request citing her unacceptable attendance record as the basis for the
denial. Complainant informed the agency by letter dated November 30,
1997, that her use of sick leave was based upon a �work incurred back
injury that [she] no longer suffered from.� Report of Investigation,
p. 66. The agency responded by noting that her attendance record
included her pattern of sick leave use, tardiness, and lost work days
due to suspensions. Again, the agency determined that complainant was
not the best qualified candidate and denied her request for reinstatement.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint on April 18, 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 race and sex discrimination and retaliation. The AJ also
concluded that complainant failed to establish a prima facie case of
disability discrimination. The AJ found, in viewing the record in the
light most favorable for complainant, that she failed to show that she
was a qualified individual with a disability. Specifically, the AJ noted
that complainant did not demonstrate that she suffers from an impairment
which substantially limits one or more major life activities or that
the agency perceived her as having such an impairment. Accordingly,
the AJ determined that complainant is not afforded any protection from
the Rehabilitation Act.
Assuming arguendo that complainant established her prima facie cases, the
AJ then concluded that the agency proffered legitimate, nondiscriminatory
reasons for denying her request, namely, because of complainant's poor
attendance. In reaching this conclusion, the AJ noted that complainant
was disciplined on several occasions for poor attendance and that the
agency relied upon this information in reaching its decision to deny
her request for reinstatement. The AJ also concluded that complainant
failed to demonstrate by a preponderance of the evidence that she was
discriminated against under any of her alleged bases.
The agency's final action implemented the AJ's decision. Complainant
made no new contentions on appeal. The agency stands on the record and
requests that we affirm its final action implementing the AJ's decision.
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 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.
In finding no discrimination, the AJ relied on the representations
of management officials as provided in their affidavits. The agency
officials stated that they relied upon complainant's poor attendance
record when they denied her request for reinstatement. Complainant
averred that the reasoning provided by the agency was pretextual.
In particular, complainant argued that the recommending officials (RO1 and
RO2) acted based on her prior EEO activity, a perceived disability, her
race, and her sex. Although RO1 and RO2 denied such claims, an evaluation
of complainant's request for reinstatement by RO1 appears contradictory.
In his evaluation, RO1 noted that complainant had unacceptable attendance
record, sustained carpal tunnel, and was involved in an EEO settlement.
Report of Investigation, p. 361. RO2's evaluation also contained similar
inconsistencies. In particular, RO2 noted on her evaluation form that
complainant had shoulder and lower back injuries and tendinitis in
both of her wrists. Report of Investigation, p. 356. Furthermore,
complainant contended that the disciplinary actions based on her
attendance record were removed from her file and, therefore, should not
have been considered. Report of Investigation, pp. 37 and 42. Finally,
complainant argued that her alleged attendance problems were due to an
injury she sustained. She stated that she was no longer injured and,
therefore, not expected to continue having leave problems. Based upon
a review of the record, the Commission finds that these inconsistencies
between the agency's reasons and complainant's contentions have not
been resolved.
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(c) and (d). �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 simply too many
unresolved issues which require an assessment as to the credibility of
the various management officials, co-workers, and complainant, herself.
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 REVERSES 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 appropriate EEOC field
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 request and complaint file have been transmitted
to the Hearings Unit. Thereafter, the Administrative Judge shall issue
a decision on the complaint in accordance with the regulation set forth
at 29 C.F.R. � 1614.109 and the agency shall issue a final action in
accordance with the regulation set forth at 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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
May 3, 2001
__________________
Date
1The record indicates that complainant filed two prior EEO complaints,
Agency Nos. 4-B-1131-91 and 4-B-1163-92.