01a05436
02-09-2001
Viola Miller, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific Area), Agency.
Viola Miller v. United States Postal Service
01A05436
February 9, 2001
.
Viola Miller,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 01A05436
Agency No. 4F913105696
Hearing No. 340-97-3385x
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:
(1) on the bases of race (Black) and prior EEO activity when she was
charged �Absent without Leave� (AWOL) and issued a Letter of Warning
(LOW) for not working December 23, 1995, even though she was not
scheduled to work that day; and
(2) on the bases of race, disability (back injury, hypertension,
cancer), and/or prior EEO activity when she was sent home and denied
8 hours of work on one or more occasions from February 1995 through
December 1996.<2>
For the following reasons, we REVERSE and REMAND the agency's final
action.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Letter Carrier at the agency's Lancaster, California
facility. Believing she was a victim of discrimination, complainant
sought EEO counseling and, subsequently, filed a formal complaint on May
2, 1996. 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 concluded that complainant failed to establish a prima facie
case of race discrimination in regard to issue 1, noting that she
presented neither direct evidence of discrimination nor comparative
evidence from which to infer that her race motivated the action.<3>
The AJ then concluded that although complainant established a prima
facie case of race discrimination in regard to issue 2, the agency
articulated a legitimate non-discriminatory reason for its actions.
The agency noted that complainant's restrictions were such that
on some occasions there were not 8 hours of work available for her.
The AJ found that there was no genuine issue of material fact regarding
whether this explanation was a mere pretext for race discrimination,
noting that complainant offered no evidence to rebut the agency's
explanation that complainant's restrictions were the only determining
factor in deciding whether she worked 8 hours or not. The AJ also found
that complainant failed to rebut her supervisor's testimony, supported
by two non-managerial employees, that a thorough search for available
work was made each day before complainant was sent home. The AJ pointed
out that �the agency even violated the collective bargaining agreement
on occasion� to provide complainant with work. The AJ also found that
several Caucasian carriers were sent home on leave without pay when work
could not be found within their restrictions.
The AJ found that complainant was a qualified individual with a
disability, noting that her back impairment substantially limited her
ability to perform manual tasks and that complainant was able to perform
the duties of her restructured position. The AJ then concluded, however,
that complainant failed to present evidence that any other employee
received a LOW or AWOL for not working on his or her non-scheduled day.
In regard to issue 2, the AJ concluded that complainant did not establish
that she was subjected to disparate treatment due to her disability,
because she did not present evidence regarding the medical status of the
employees who she claimed were not sent home as often as she. The AJ
then found that the agency did accommodate complainant by allowing her
to perform modified carrier duties and that the agency's inability to
afford complainant 8 full hours of work each day was not a violation of
the Rehabilitation Act.
Turning to complainant's claims of reprisal, the AJ concluded that
complainant established a prima facie case of reprisal in regard to both
issues, as she had participated in an EEO investigation approximately
8 days prior to the issuance of the LOW. However, the AJ held that
complainant presented no evidence refuting the agency's contention
that the LOW was issued due to a mistake. Finally, the AJ held that
because complainant's claim that she was denied 8 hours of work per
day commenced in February 1995, it could not have been motivated by a
retaliatory animus, as she did not participate in the EEO process until
December 1995/January 1996.
In conclusion, the AJ found that complainant failed to establish that
she was discriminated against or subjected to retaliation and entered
a finding of no discrimination. The agency's final action implemented
the AJ's decision.
On appeal, complainant contends, as she did previously, that there are
numerous material facts in dispute.
ANALYSIS AND FINDINGS
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. This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The Supreme Court has stated that summary judgment is appropriate where
the trier of fact determines that, given applicable substantive law, no
genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). An issue is "genuine" if the evidence is such
that a reasonable fact-finder could find in favor of the non-moving party.
Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). In the
context of an administrative proceeding under Title VII, summary judgment
is appropriate if, after adequate investigation, complainant has failed to
establish the essential elements of his or her case. Spangle v. Valley
Forge Sewer Authority, 839 F.2d 171, 173 (3d Cir. 1988). In determining
whether to grant summary judgment, the AJ's function is not to weigh
the evidence and render a determination as to the truth of the matter,
but only to determine whether there exists a genuine factual dispute.
Anderson, 477 U.S. at 248-49.
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. Most troubling in this regard is the AJ's resolution of issue 1.
In finding that complainant did not establish that she was subjected to
discrimination, the AJ concluded that complainant failed to establish
a prima facie case under McDonnell Douglas because she had failed to
identify a comparative employee. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) We note, however, that the evidence establishes
that, as far as complainant knew, she was not scheduled to work, that
an individual outside her protected groups with less seniority was
scheduled to work and that when complainant did not come to work, she
was disciplined. The question of whether she was not scheduled to work
at all, or was originally scheduled, but later her name was erased as the
agency argues, is never addressed. Moreover, complainant's contention is
that the whole incident�including the erasing of her name�was motivated
by discrimination and/or retaliation. The agency provides no explanation
for the incident at all. Given that complainant is a Black woman who
had, just 8 days prior, participated in the EEO process and that she
referenced at least one non-Black individual who was not subjected
to the treatment in question, we find that the unusual circumstances
surrounding this event, and the agency's failure to address it, raise
an inference of discrimination. Whether the agency can dispel this
inference depends, in part, on a determination of whether complainant's
name was erased from the schedule and, if so, who erased it. This kind
of determination is exactly the sort which is best made after a hearing
during which all relevant parties testify. This is especially the case
here, in that the agency failed to provide an explanation during the
investigation as to how or why complainant's name was erased.
Similarly, there are material facts in dispute in regard to issue 2.
The AJ found that complainant was charged approximately twice as many
leave without pay hours as any other light duty employee, three of whom
were Caucasian. The record supports this finding. The AJ went on to
determine that the issue was nonetheless appropriate for summary judgment
because complainant failed to rebut the supervisor's contention that it
was only complainant's medical restrictions that led to this discrepancy.
The AJ accepted the agency's explanation without requiring it to provide
complainant with documentation as to the medical restrictions of the
comparators named by complainant, so that complainant would have the
opportunity to establish that the agency's explanation was a pretext for
discrimination. After a careful review of the record, we find that there
is a genuine dispute as to whether the agency's unsupported explanation
for charging complainant with almost twice as many hours of leave without
pay as similarly situated employees is a pretext for discrimination.
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(c) and (d). �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). Here, the unusual factual situation,
as well as the lack of documentary evidence on the medical restrictions
of various similarly situated employees named by complainant, calls for
an assessment of 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.
As a final matter, we note that it is questionable whether complainant
is a qualified individual with a disability within the meaning of
the Rehabilitation Act.<4> The record does not include sufficient
information from which to judge if she is substantially limited in a
major life activity. This is an issue that must be explored at the
hearing. We note, however, that, assuming complainant is a qualified
individual with a disability, the agency must establish that it was
an undue hardship to provide her with eight hours of work a day, as
complainant alleged that failure to do so was a failure to provide
her with a reasonable accommodation. Although the AJ found that the
agency met this burden, she did so on the basis of an incorrect legal
analysis, relying on the fact that the agency, on occasion, violated
the collective bargaining agreement to provide complainant with work.
This reliance is misplaced, as the agency is required to attempt to
negotiate a variance with union officials when an accommodation violates
a collective bargaining agreement. See Zarate v. United States Postal
Service, EEOC Appeal No. 01A00415 (January 8, 2001).
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 Los Angeles EEOC
district office in accordance with this decision and the ORDER below.
ORDER
The complaint is remanded to the Hearings Unit of the Los Angeles EEOC
district office for scheduling of a hearing in an expeditious manner.
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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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
February 9, 2001
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Complainant alleged that by this action she was subjected to disparate
treatment and denied a reasonable accommodation.
3 This issue involves not only complainant's claim that she was
disciplined and charged AWOL when she did not work on her non-scheduled
day, but also her claim that her name was erased from the list of
those scheduled to work due to a discriminatory or retaliatory animus.
This claim seems to stem from the agency's argument that complainant was
disciplined for not coming to work because her name had been on the list
of those scheduled, but was erased.
4The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.