0120112242
03-07-2012
Mitzi G. Baker, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Mitzi G. Baker,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120112242
Hearing No. 440-2009-00112X
Agency No. 4J-606-0005-09
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s April 14, 2010 final order1 concerning
her equal employment opportunity (EEO) complaint alleging 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. Our review
is de novo. For the following reasons, the Commission VACATES the
Agency’s final order.
BACKGROUND
Complainant is a former full-time Letter Carrier at the Merchandise
Mart Station in Chicago, Illinois. In 2001, Complainant filed an
EEO complaint naming her supervisor (S1) as the responsible management
official. The complaint was resolved by settlement agreement on January
5, 2002. Complainant’s employment with the Agency ended a month later.
In 2008, Complainant hired a consulting firm specializing in professional
reference checking and employment verification. On August 22, 2008,
a representative of the firm spoke with S1. Complainant asserts that
during the interview S1 stated that she could not recommend Complainant
because Complainant sues everyone. In addition, Complainant claims
that S1 said that Complainant “would not be allowed to come back to
the Post Office” and that “she was let go.”
On November 8, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against her in reprisal for prior protected EEO
activity when, on September 3, 2008, she became aware that, on August
22, 2008, a company requesting background information on her had been
given a negative, false, and malicious job reference. At the conclusion
of the investigation, the Agency provided Complainant with a copy of
the report of investigation (ROI) and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case determined that the
complaint did not warrant a hearing and issued a decision without a
hearing on January 26, 2010.
In the decision, the AJ determined that Complainant had not established
a prima facie case of reprisal discrimination. Specifically, the AJ
found that Complainant’s last protected EEO activity was resolved in
2002 by settlement agreement while the alleged discriminating conduct
at issue occurred more than six years after she ended her employment.
The AJ concluded that too much time had passed to establish a causal
nexus between her prior protected EEO activity and the Agency action
at issue. As a result, the AJ found that Complainant had not established
a prima facie case of reprisal and was therefore not retaliated against
as alleged. The Agency subsequently issued a final order adopting the
AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that during her tenure with the Agency,
she engaged in protected activity by filing EEO complaints, participating
in investigations, and testifying in hearings against supervisors.
In addition, Complainant argues that she has shown that S1 retaliated
against her because S1 admitted giving the negative reference at issue.
Further, Complainant argues that a temporal sequence is not the only
way to prove or disprove a causal connection. Accordingly, Complainant
requests that the Commission reverse the final order.
ANALYSIS AND FINDINGS
Decision Without a Hearing
The Commission must determine whether it was appropriate for
the AJ to have issued a decision without a hearing on this record.
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.
At the outset, it is significant to note that the AJ initially misstated
numerous details about Complainant’s complaint in his decision.
Specifically, the AJ characterized the matter under the “Issues
Presented” section as a race, age, and reprisal-based claim regarding a
suspension and the issuance of a letter of reprimand, possibly confusing
this complaint with another complaint. However, the AJ correctly
identified the issues and bases later in the decision.
After a careful review of the record, the Commission finds that the
AJ erred when he concluded that summary judgment was appropriate in
this case because Complainant had not established a prima facie case of
reprisal. In so finding, the AJ relied on the fact that Complainant’s
last protected EEO activity occurred six years prior to the alleged
discriminatory incident and, therefore, there was insufficient temporal
proximity to demonstrate a causal nexus. The AJ found no other evidence
sufficient to support an inference of retaliation.
The Commission notes that an initial inference of retaliation arises
where there is proof that the protected activity and the adverse action
were related. EEOC Compliance Manual Section 8: “Retaliation,”
No. 915.003, at 8-18 (May 20, 1998). Typically, the link is demonstrated
by evidence that: (1) the adverse action occurred shortly after the
protected activity, and (2) the person who undertook the adverse action
was aware of the complainant's protected activity before taking the
action. Id. But it is important to emphasize that it is causation,
not temporal proximity itself that is an element of Complainant’s
prima facie case. Kachmar v. Sunguard Data Systems, 109 F.3d 173, 178
(3d Cir. 1997). Temporal proximity merely provides an evidentiary basis
from which an inference can be drawn. Id. The element of causation,
which necessarily involves an inquiry into the motives of an employer,
is highly context-specific. Id.
Notwithstanding temporal proximity, the Commission finds that the AJ
failed to consider Complainant’s contention and evidence in the record
that S1 told the representative that she could not recommend Complainant
for employment because “she sues everyone.” Further, the AJ failed
to consider Complainant’s claim that S1 also stated that Complainant
was “let go” and “would not be allowed to come back to the Post
Office.” S1 denied that she made any of the above comments. Even so,
the Commission finds that these statements constitute sufficient evidence
to raise an inference that S1 provided the representative a negative job
reference in reprisal for Complainant’s prior protected EEO activity.
In addition, this raises an issue of credibility that needs to be resolved
at a hearing.
If a case can only be resolved by weighing conflicting evidence,
issuing a decision without holding a hearing is not appropriate.
The courts have been clear that summary judgment is not to be used
as a “trial by affidavit.” Redman 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. Dep't of Justice, EEOC Request No. 05940339 (Feb. 24, 1995).
Given the conflicting evidence on the critical issue as to what exactly
S1 told the representative during the background reference interview
and whether retaliatory motive existed, the Commission concludes that
the AJ’s conclusions could not be reached except by resolving such
significant conflicts in the Agency’s favor, an action that is not
appropriate in a grant of summary judgment. As a result, the Commission
finds that issuance of a decision without a hearing under 29 C.F.R. §
1614.109(g) was improper as there remain material facts in dispute that
require resolution at hearing.
CONCLUSION
After a careful review of the record, the Commission VACATES the Agency's
final action and REMANDS the matter to the Agency for further processing
in accordance with this decision and the Order below.
ORDER
The Agency shall submit to the Hearings Unit of the Chicago District
Office the request for a hearing a copy of the complaint file 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 (K0610)
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 77960, Washington, DC
20013. 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 (M0610)
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.
3.
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), at 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
77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 7, 2012
Date
1 On April 1, 2010, Complainant filed an appeal from the AJ’s
decision after the Agency failed to timely issue its final order.
The Agency subsequently issued its final order on April 14, 2010.
The AJ’s decision provided Complainant the Commission’s outdated
address for filing her appeal. Complainant submitted evidence showing
that she timely filed her appeal using the outdated address. Therefore,
the Commission deems the instant appeal timely.
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0120112242
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013