01a54194
05-16-2006
Juan J. Cantu, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Juan J. Cantu v. United States Postal Service
01A54194
May 16, 2006
.
Juan J. Cantu,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54194
Agency No. 1G-787-0047-03
Hearing No. 360-2005-00091X
DECISION
Complainant timely initiated an appeal from a final agency order
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., 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. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission reverses and remands
the agency's final order.
The record reveals that during the relevant time, complainant was employed
as a General Expediter at the agency's Austin Processing and Distribution
Center, Austin, Texas facility. Complainant sought EEO counseling and
subsequently filed a formal complaint on October 27, 2003. A fair reading
of complainant's statements indicate that complainant is alleging that
he was discriminated against on the bases of race (Hispanic/Caucasian),
disability (residuals of a fractured thumb, medial meniscus tear)<1>,
age (DOB: July 13, 1958) and reprisal for prior EEO activity when:
(1) from March 8 to April 7, 2003, he was told that his light duty
assignment had expired and he was sent home;
he was denied a reasonable accommodation when he was denied steady
limited duty work for a work-related injury, and instead was not allowed
to work for long periods of time or was given intermittent �light� duty
assignments;<2> and
from July 2 to October 9, 2003 he was again sent home in retaliation
for persisting in his requests for a reasonable accommodation;
The agency, however, only identified issues 1 and 3 as issues to be
investigated. 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). On February 9, 2005, the AJ
notified the parties of her intent to issue a decision without a hearing
and invited the parties to respond and show that the record contained
material facts at issue. In addition, the AJ apparently fully adopted
the agency's identification of the issues in this complaint as consisting
solely of issues 1 and 3 above. Complainant provided no response, and
the agency responded in support of a decision on the record. The AJ
issued a decision without a hearing finding no discrimination.
The AJ concluded that the agency proffered legitimate, nondiscriminatory
reasons for its actions. Specifically, the AJ noted that complainant's
Manager (RMO1: Hispanic, age and disability unknown) and another
supervisor (RMO2: Black, age, and disability unknown) averred that
complainant was sent home because his previously approved light duty
assignment had expired and complainant did not have current medical
documentation on file. Complainant returned to work on April 7, 2003,
and was sent home the second time because once again he did not have
updated medical documentation. The AJ further found that complainant did
not respond to the agency EEO investigator's request for an affidavit
and thus failed to establish pretext. The agency's final action fully
implemented the AJ's decision.
On appeal, complainant states that on March 8, 2003, he was working light
duty with two coworkers when RMO2 told him that his light duty had expired
on February 17, 2003, that he needed to submit updated paperwork in order
to qualify for more light duty, and that he would have to stay home until
the updated request had been processed. Complainant further indicated
that RMO2 did not seek updated medical information from complainant's two
similarly situated coworkers (both Black) or tell them they would need
to stay home. Complainant further stated that he had been on light duty
since January 15, 2002, and indicated that no other management official
had sent him home due to out-dated medical information. He maintains he
mailed the appropriate paperwork on March 11, 2003, but was not permitted
to return to work until April 7, 2003.
Complainant further states in his pre-complaint counseling report that
on July 1, 2003, he handed his supervisor (RMO3: race, disability and
age, unknown) a physician's note requesting that the agency reevaluate
complainant's job duties to prevent �repetitive motion/movement/use of
right thumb.� The following day, according to complainant, RMO3 gave him
a light duty form to complete telling complainant �that's all the work we
have,� despite complainant's explanation that the injury in question was
work-related and that he should be on limited duty status. Complainant
maintains that that same day, RMO1 told complainant to go home until his
light duty request had been processed. He states that he submitted his
paperwork on July 9, 2003, but was not permitted to return to work until
October 9, 2003. Complainant further presents additional evidence of
his medical conditions. The agency argues that such new evidence is
presented for the first time on appeal and should not be considered.
The agency further reiterates the arguments it made before the AJ 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. 29 C.F.R. � 1614.109(g). 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's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. 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. at 255. An 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,
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 she
concluded that there was no genuine issue of material fact in this case.
A cursory review of the complaint record and complainant's statements
would have clarified complainant's allegations and would have shown that
complainant did submit an affidavit during the investigation, contrary
to the AJ's finding. Instead, evidence in the record appears to have
been disregarded at the summary judgment stage. We find initially that
a fair reading of complainant's complaint reveals that in addition to
the disparate treatment claims regarding being sent home from work,
complainant is also arguing that the agency denied him reasonable
accommodation for his disability when he was denied steady limited duty
work for a work-related injury, and instead was not allowed to work for
long periods of time or was given intermittent �light� duty assignments.
This issue was not developed below. In this regard, we note that
the Office of Workers' Compensation Programs (OWCP) found on July 8,
2003, that complainant's thumb condition was a work-related injury.
The record shows, however, that through October 2003, complainant was
either prevented from working or offered only occasional light duty work
based on his thumb injury.
Regarding the issues addressed by the AJ, we note that the AJ determined
that it was unnecessary to make a finding concerning whether or not
complainant established a prima facie case because she found that the
agency articulated a legitimate, nondiscriminatory reason for its actions.
However, as we will describe below, we find that the agency's articulated
reason for its actions does not fully address all of the issues raised
by this complaint. Whether or not complainant established a prima facie
case, therefore, remains at issue. However, due to the paucity of the
record, we are unable to determine on appeal whether complainant can
establish such a prima facie case on all claims raised.
Complainant's status as an individual with a disability at the time of
the events at issue remains unclear. The agency argues that complainant
is not an individual with a disability. The record contains medical
documentation dated January 14 and May 2, 2002, and September 26,
2003, that show that, among other things, complainant was placed on
a 20 lbs. lifting restriction. Additional medical documentation,
dated February 10 and March 10, 2003, indicate complainant's lifting
restriction was 30 lbs. It is unclear whether such medical restrictions
remained in effect at the time he was sent home on July 2, 2003.
Complainant also claims discrimination based on race and reprisal.
In his June 8, 2003 statement to the EEO Counselor, complainant identifies
another employee of a different race with a recent injury who he alleges
was treated differently. It is unclear from the record, however, whether
this person, a Clerk, is similarly situated with complainant, a General
Expediter. In an affidavit dated January 26, 2005, complainant alleges
that �there were other Clerks . . . who were injured and another who had
surgery and they didn't experience what I did.� On appeal, complainant
points out that he also raised age as a basis of discrimination with the
EEO Counselor in a handwritten statement dated August 11, 2003, regarding
the July 2 incident. However, he has not specifically identified any
otherwise similarly situated employee younger than he who was treated
differently. Finally, regarding reprisal, complainant alleges that
he filed a previous EEO complaint on November 15, 2001, which is more
than a year prior to either incident at issue in the present complaint.
Furthermore RMOs 1 & 2 averred that they knew nothing of complainant's
prior EEO activity. See Report of Investigation (ROI) Affidavits B & C.
However, a fair reading of complainant's complaint indicates that he
also alleges that the agency retaliated against him by sending him home
after he requested the reasonable accommodation of being given a limited
duty assignment.
As noted above, we find that the agency's articulated reason for its
actions raises material issues of fact. RMOs 1 & 2 averred that
complainant was sent home because his previously approved light
duty assignment had expired and complainant did not have current
medical documentation on file. Id. However such statements fail to
fully explain the agency's actions. Complainant was sent home twice,
the first time on March 8, 2003, and the second time on July 2, 2003.
RMO2's statement refers to the March 8 incident, but it makes no mention
of the July 2 incident. See Affidavit C. RMO1's affidavit specifies
neither date, but RMO1 further avers that complainant �finally turned in
documentation on June 3rd.� Affidavit B. Both affidavits, therefore,
appear to address the first incident but not the second.
We next note that RMO1's affidavit stating the complainant turned in
medical documentation on June 3 contradicts complainant's April 21, 2003
statement to the EEO Counselor that he submitted medical documentation on
March 11, 2003. See Counselor's Report. Furthermore, the AJ found that
complainant initially returned to work on April 7, 2003. AJ's Decision,
p. 2. If complainant did not submit documentation until June 3, as
RMO1 averred, it is not clear why was he permitted to return to work on
April 7. Additionally, as noted above, evidence of the non-moving party
must be believed at the summary judgment stage. Therefore, assuming
the truth of complainant's statement that he submitted his medical
documentation on March 11, the agency has offered no explanation for
why complainant did not return to work until April 7.
Finally, the AJ found that complainant failed to respond to the agency
EEO investigator's request for an affidavit. However, the record does
contain an EEO investigative affidavit from complainant dated January 26,
2005, which is approximately six weeks prior to the AJ's decision dated
March 7, 2005. The agency, in its brief submitted on appeal, states
that the agency forwarded this affidavit to the AJ. Agency's Brief
dated August 8, 2005, p. 2.
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, in
appropriate instances, to examine and cross-examine witnesses." See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 7-1 (November 9, 1999); see also 29 C.F.R. � 1614.109(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 25, 1995).
In summary, there are simply too many unresolved issues which require
an assessment as to the credibility of the various management officials
and complainant himself. 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 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
May 16, 2006
__________________
Date
MEMORANDUM
TO: Supervisory/Lead Administrative Judge
San Antonio District Office
Hearings Unit
FROM: Carlton M. Hadden, Director,
Office of Federal Operations
RE: Juan J. Cantu v. United States Postal Service
EEOC Appeal No. 01A54194
Enclosed is a decision requiring that the referenced complaint be
assigned to an Administrative Judge for the scheduling of a hearing.
We request that the Administrative Judge notify the Compliance Division
of the Office of Federal Operations after a decision has been issued.
If you have any questions regarding the further processing of this
complaint, please contact Robert Barnhart, Director of Compliance and
Control at (202) 663-4525.
cc: District Director,
San Antonio District Office
Administrative Judge Coordinator
Office of Field Programs
1Given the procedural posture of this case, it is premature to make
a determination on whether or not complainant is an individual with
a disability.
2 It appears from the record that agency employees with work-related
injuries and accepted Office of Workers'Compensation Programs (OWCP)
claims are placed on �limited duty� and guaranteed eight hours of work
each day. Employees with non-work related medical restrictions may
request to be placed on �light duty,� but are not guaranteed full-time
work.