Lucille A. Federico, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity CommissionMar 14, 2002
01A05322Federico (E.E.O.C. Mar. 14, 2002)

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.