01995632
01-16-2002
Clinton D. Farwell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.
Clinton D. Farwell v. United States Postal Service
01995632
January 16, 2002
.
Clinton D. Farwell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 01995632
Agency No. 1E-853-0055-97
Hearing No. 350-99-8010X
DECISION
Complainant timely initiated an appeal from a final agency action
concerning his complaint of unlawful employment discrimination in
violation of the Rehabilitation Act (29 U.S.C. � 791 et seq.) The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges
he was discriminated against on the basis of disability (history of
substance abuse) when he was removed from his position as a FSM Clerk
for �unacceptable conduct/providing false or incomplete information on
an official postal record.�
For the following reasons, we VACATE the agency's final decision and
REMAND the complaint for a hearing.
The record reveals that during the relevant time, complainant was employed
as a FSM clerk at the agency's Processing/Distribution Center in Phoenix,
Arizona. Believing himself to be a victim of discrimination, complainant
sought EEO counseling and, subsequently, filed a formal complaint on
November 11, 1997. Complainant alleged that he was removed from his
position because he revealed, in connection with a medical examination,
that he had a history of prior drug abuse. Complainant contended that
the agency improperly discriminated against him because of his disabling
condition and that questions which solicited the information regarding
drug abuse were themselves improper.
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 found that the agency proffered legitimate, nondiscriminatory
reasons for complainant's removal, namely, that, in connection with
two medical examinations conducted by the agency in earlier years,
complainant had failed to disclose that he had used illegal drugs and
alcohol. In concluding that the agency was entitled to judgment as a
matter of law, the AJ held:
I find that the complainant has not met his burden of persuasion. First,
I find that the complainant did not produce evidence which proves that
the agency's articulated reason is not credible. The record shows that
complainant did not disclose his alcohol or drug use on the [medical
forms] he previously submitted in October 1992 and August 1994. Second,
I find complainant's argument that the agency failed to consider his
mitigating factors unpersuasive. [emphasis added]
The agency's final action implemented the AJ's decision.
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 the Rehabilitation Act,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
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.
The AJ has performed the kind of weighing of evidence and assessment
of credibility that may not be engaged in in the course of arriving at
a summary judgment.<1> The record amply demonstrates that this is a
factual dispute between the parties concerning the actual reason for
complainant's removal. If complainant can prove that he was removed
because he has a history of substance abuse, he may be entitled to the
protections of the Rehabilitation Act. See Payne v. United States Postal
Service, EEOC Appeal No. 01971277 (May 31, 2001)(a person with a history
of substance abuse �can establish coverage under the Rehabilitation
Act based on having a history of drug addiction or being �regarded as'
a drug addict.�). The agency maintains that complainant was removed
because it was discovered in 1997 that complainant had made intentionally
false statements on medical questionnaires he signed and submitted to the
agency in 1992 and 1994 and not because of his history of substance abuse.
Each party has submitted competent evidence, in the form of witness
affidavits, supporting the facts asserted. Complainant, for his part,
asserts that the incorrect answers he gave were the result of his
misinterpretation of the questions and not the product of intentional
falsification. In addition, complainant has submitted evidence that the
severity of the punishment imposed by the agency was disproportionate to
complainant's alleged offense. Complainant's evidence, if taken as true,
as it must be in the context of summary judgment, would be sufficient
to support a finding that the agency's explanation for its actions was a
pretext designed to conceal discriminatory intent. There is, therefore,
a genuine issue of material fact which precludes summary judgment.
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 EEOC's Phoenix
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
January 16, 2002
__________________
Date
1The language employed by the AJ in explaining his decision (e.g. �not
credible� and �unpersuasive�) demonstrates that the AJ has engaged in
the type of weighing of evidence and assessing credibility proscribed
by the Supreme Court in Anderson, supra.