01A05322Federico
03-14-2002
Lucille A. Federico, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.
Lucille A. Federico v. United States Postal Service
01A05322
March 14, 2002
.
Lucille A. Federico,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 01A05322
Agency No. 1E853005798
Hearing No. 350-99-8371X
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.<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges she was discriminated against on the bases of race (Hispanic),
color (brown), sex (female), national origin (Mexican-American), age (over
40), and disability (bilateral carpal tunnel syndrome with tendinitis)
when she was harassed by her supervisor from July 21, 1997, to April
4, 1998.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk at the agency's Phoenix Processing
and Distribution Center, Phoenix, Arizona. Believing she was a victim
of discrimination, complainant sought EEO counseling and, subsequently,
filed a formal complaint on August 29, 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.
In support of her complaint, the complainant set forth 18 incidents of
alleged harassment as follows:
1. On July 21, 1997, the supervisor told her to get off light duty
immediately.
2. On July 24 and 25, 1997, the supervisor verbally attacked her in
front of a co-worker.
3. On November 21, 1997, the supervisor would not let her work in
another zone and was cruel to her.
4. On November 22, 1997, the supervisor would not speak to her.
5. On November 23, 1997, the supervisor denied complainant's request
to see a nurse.
6. On November 24, 1997, the supervisor told her she could only see
the nurse during her break or lunch.
7. On January 16, 1998, the supervisor told complainant to �get to
work� in a negative, abusive, and hostile manner after complainant
asked if the supervisor had completed complainant's form CA-17 (Worker's
Compensation claim form).
8. On January 26, 1998, complainant's request to speak to a union
steward was denied by the supervisor and the supervisor verbally attacked
her and made her sit in a different aisle.
9. On January 2, and January 30, 1998, she was refused access to her
agency injury compensation representative by the supervisor and had to
seek out another supervisor to accomplish her request.
10. On January 4 and February 3, 1998, she was harassed by her
supervisor for following orders of another supervisor.
11. On February 8, 1998, complainant was harassed on the phone by two
supervisors when she requested Family Medical Leave (FMLA) leave.
12. On February 13, 1998, the supervisor did not rotate her work
assignment on a daily basis and was sent back to her zone to work.
13. On January 2, February 23, and March 1998, complainant's supervisor
told complainant to study according to the supervisor's instructions
and then instructed complainant to case mail opposite of what she
had studied.<2>
14. On March 28, 1998, the supervisor checked on her six times and
sarcastically asked how her hands were.
15. On March 27, 1998, the supervisor checked on her 10 times and
asked her how much work she had done. Complainant states the question
was asked in a negative and sarcastic tone.
16. On March 16, 19, 20, 21, and 23, 1998, complainant requested FMLA
leave. The supervisor requested medical documentation before approving
the leave, although according to complainant, she had documentation on
file which was to be honored for 30 days.
17. On January 19 and March 23, 1998, the supervisor gave her a work
assignment to sweep the primer section.
18. On April 4, 1998, complainant was falsely accused of (a) having
an accident; (b) failing to work in a safe manner; (c) working outside
her restrictions; and (d) failing to report an accident.
As of March 20, 1998, complainant had medical restrictions on file
stating that she needed to avoid repetitive actions in both extremities,
no lifting over 10 pounds, and no lifting above chest height, both
upper extremities.
At the outset, the AJ found that complainant was not a person with
a disability, because the evidence of record did not establish that
complainant's condition substantially impaired any of her major
life activities or that complainant was regarded as an individual
with a disability. In addition, the AJ found that complainant was not
discriminated against on the basis of age with respect to events occurring
before March 2, 1998, the date complainant became 40 years of age.
The AJ further found that only incidents 12, 16, 17, and 18 contained
in complainant's recitation of events involved any action which adversely
affected a term, condition, or privilege of employment.
The AJ found that the incidents, taken together, were sufficient to
state a claim of unlawful harassment. However, the AJ found that
complainant did not present sufficient evidence to establish either
that complainant was treated any differently from similarly situated
persons outside of her protected groups, or that her working environment
was objectively hostile. Although the AJ recognized that complainant
had asserted that she was treated differently from her coworkers, the
AJ found that complainant's conclusory assertions were insufficient
to establish that she was treated any differently from any similarly
situated individual who was not a member of her protected classes.
In the AJ's view, all the incidents complainant cited were examples of
normal day-to-day interactions between supervisor and subordinate that
could be expected to occur in any workplace.
The AJ noted that complainant took issue with the supervisor's tone of
voice and allegedly sarcastic attitude in dealing with her, but found this
was insufficient to establish that discrimination occurred. In addition,
the AJ found that the supervisor articulated legitimate reasons for her
actions, i.e., complainant's work assignments were predicated on the
needs of the moment and the availability of work within complainant's
medical restrictions. The AJ finally found that complainant failed to
show pretext; that the evidence of pretext in the record consisted only
of complainant's bare assertions; and that there was no evidence of any
discriminatory animus by complainant's supervisor.
The AJ essentially 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.
On appeal, complainant argues that the AJ erred in awarding summary
judgment to the agency. The complainant argues that the AJ failed to
recognize that there were genuine issues of material fact, and that many
of the AJ's findings of fact were erroneous.
ANALYSIS AND FINDINGS
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find
[it] hostile or abusive� and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
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).
The AJ found that there was no reliable evidence in the record to support
complainant's bare assertions that on occasions the supervisor �verbally
attacked� her, was �cruel� to her, told her to get off light duty, and
spoke to her in a �negative� or sarcastic tone. Essentially, the AJ,
in granting summary judgement, was necessarily finding that complainant
was not credible. Although the AJ found that evidence was absent that
the supervisor's treatment was motivated by any discriminatory animus,
this finding did not consider complainant's testimony and statements
of other persons in the investigation file. As previously indicated,
in ruling on a motion for summary judgment a court does not sit as a
fact finder, and 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.
For example, with respect to allegation one, complainant alleged she was
told by her supervisor to get off light duty immediately. Complainant,
on appeal, points to an affidavit by Union Steward A (male) supporting
her version of what happened. With respect to allegation two,
complainant, on appeal, points out that an affidavit by her husband,
a co-worker, supports her view of how inappropriately her supervisor
treated her. With respect to allegation three, complainant, on appeal,
articulates in detail the alleged �cruelty� of the supervisor in her
affidavit dated August 20, 1998. Complainant addresses the merits of
her other allegations as well, typically disputing the AJ's findings.
In addition, complainant's appeal points to, and the record includes,
the statements of a number of other witnesses, indicating that other
employees in complainant's work area were not treated in the alleged poor
manner in which complainant was treated. The appeal also identifies
Union Steward B (female) as a witness, who filed a statement that she
spoke with complainant on many occasions when complainant was in tears
as a result of the treatment by the supervisor. Union Steward B also
indicated that she felt the supervisor was prejudiced against complainant
on the basis of race.
In finding no discrimination, the AJ relied on the representations
of complainant's supervisor. 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. This is directly contradicted by
complainant's witnesses. 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 factual 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.
In sum, we conclude that if the evidence of complainant is believed
and all justifiable inferences are drawn in the complainant's favor,
a reasonable fact finder could find in complainant's favor. Accordingly,
we find that the AJ erred in granting summary judgement to the agency.
CONCLUSION
Therefore, after a careful review of the record, 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 Commission'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
March 14, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 See Final Interview/Notice of Right to File Individual Complaint
dated August 5, 1998, defining issues in complainant's complaint as set
forth in initial interview letter dated May 27, 1996. This particular
allegation was not set forth by the AJ in her decision. However,
the AJ indicated that on several occasions, most recently in February
and March 1998, complainant's supervisor requested her trainer to give
complainant remedial training because complainant had failed initial
training, and that as a result of the training, complainant's score
improved dramatically.