01a50005
09-28-2006
Myrna Velez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Myrna Velez v. United States Postal Service
01A50005
September 28, 2006
.
Myrna Velez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50005
Agency No. 1A-007-0001-03
Hearing No. 150-2003-094
DECISION
Complainant timely initiated an appeal from a final agency order
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. , 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 Supervisor, Distribution Operations at the agency's
San Juan Processing and Distribution facility. Complainant sought EEO
counseling and subsequently filed a formal complaint on January 8, 2003,
alleging that she was discriminated against on the bases of a disability
( major depression), sex (female) and age (D.O.B. 1/22/1958) when she
was not granted sick leave.
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 stated in her decision that the
agency's Motion for Summary Judgment was correct and should be adopted
in its entirety.
The AJ found that complainant submitted documentation for the period
June 4, 2002 to July 3, 2002 but that complainant failed to submit
documentation to support her request for sick leave for July 3, 2002 to
September 2, 2002. The AJ concluded that other male supervisors were
not treated more favorably because they submitted the required medical
documentation to support their leave requests. The agency's final action
implemented the AJ's decision.
On appeal, complainant contends, among other things, that the AJ's
decision granting summary judgment to the agency was in error because
her medical documentation indicated that the possible duration of
her condition would last until July 1, 2002. She contends that the
documentation confirms that she suffered from severe recurrent depressive
symptoms which interfered with her ability for global functioning.
Complainant also contends that the record supports that one of the other
male supervisors was approved for leave taken prior to submitting his
request which indicated the agency's more favorable treatment of its
male employees.
The agency argues that the AJ's decision was correct and that
complainant's arguments on appeal are specious and without merit.
Specifically, the agency argues that complainant does not support her
contention that she was incapacitated during the time in question and
should be excused from following the agency's leave procedures.
ANALYSIS AND FINDINGS
The Commission's review of a decision by summary judgment is de novo,
meaning that it is done without regard to the legal or factual conclusions
of the previous decision maker. EEOC Management Directive 110, Chap. 9
(Sect. VI) (Rev. 1999). Our regulations allow an AJ to issue a decision
without a hearing when he or she finds that there are no genuine issues
of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned
after 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. Petty v. Department
of Defense, EEOC Appeal No. 01A24206, (July 11, 2003).
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 summary judgment was appropriate. Moreover, the AJ's
decision contained no analysis of the record evidence which indicated
why she found it appropriate to grant summary judgment.
Our review of the record revealed that the AJ made improper determinations
regarding the credibility of the witnesses, specifically, she credited
the statements of all the agency's managers over that of the complainant
and records supporting complainant. 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). This is exemplified by
her finding that complainant failed to submit documentation to support
her leave request. On the contrary, complainant submitted the report
of her treating physician which stated that complainant suffered from
Major Depressive disorder, that required hospitalization and follow-up
outpatient treatment for one year.
In addition, the doctor advised that complainant should appear for
monthly clinical visits and that she was on continuing prescription
medicine for depression. Complainant also testified that there was
additional documentation given which the agency failed to produce. Thus,
when viewing the evidence in the light most favorable to complainant,
this documentation supported complainant's leave request for the period
past July 1, 2002 and indicated that she had a severe condition during
the entire time period in question.
The AJ concluded that there was no evidence that the agency treated
its male employees more favorably, yet the evidence supports that the
agency granted leave in its entirety where male employees submitted
leave requests. When complainant made her request, all but one week
was approved. Although the agency claimed that her request was not
documented, the physician's note recommended leave for the whole period
through September 2, 2002.
The AJ also did not evaluate whether complainant was an individual
with a disability given the nature and severity of her condition.
Her medical documentation indicated she had a major psychological
disorder, which was recurrent in partial remission. From the medical
evidence, a reasonable inference could be drawn that complainant fit
the definition of �disabled.� If complainant is found to be disabled
within the meaning of the law, complainant's leave request could have
been considered a form of reasonable accommodation.
The Commission has stated 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 7,
page 7-1; 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 23, 1995). In sum, there are simply
too many unresolved issues which require weighing of the evidence.
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 New York District
Office, San Juan Area 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
September 28, 2006
__________________
Date