0120111592
06-11-2013
Bonnie G. Bell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Bonnie G. Bell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120111592
Hearing No. 450-2010-00234X
Agency No. 4G-752-0110-10
DECISION
On February 3, 2011, Complainant filed an appeal from the Agency's January 6, 2011 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the EEOC Administrative Judge's issuance of a decision without a hearing was appropriate.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency's Longview Northwest Station in Texas. According to the position description, Rural Carriers are required to sort mail into delivery sequence, load mail into their vehicles, and deliver all mail to the designated addresses.
On December 2, 2009, Complainant was involved in a motor vehicle accident while on duty delivering mail. This was Complainant's fifth accident since 2004. According to the Texas Peace Officer's Crash Report, Complainant failed to yield the right of way to another vehicle. Medical documentation indicated that Complainant was injured in the accident, was unable to return to work from December 3, 2009 to January 10, 2010, and was able to return to work (with medical restrictions) on January 11, 2010. Report of Investigation (ROI), at 81-82. As of April 18, 2010, the Agency had not allowed Complainant to return to work. Id. at 70.
Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of disability and reprisal for prior protected EEO activity when:
1. On and after January 11, 2010, she was not returned to duty;
2. On December 28, 2009, she became aware that she was not going to receive continuation of pay (COP) for her December 2, 2009 injury; and
3. On or about March 5, 2010, she was informed that she was approved for COP but had not been paid.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on December 6, 2010, finding no discrimination.
Regarding claim 1 (return to duty), the AJ found that Complainant did not establish that the Agency failed to provide her with a reasonable accommodation. Instead, the AJ found that the Manager, Customer Services (M1) had placed Complainant in a non-duty status on December 2, 2009 pursuant to Article 16.5 (Emergency Procedure) of the National Agreement between the Agency and the National Rural Letter Carriers' Association, pending investigation of the accident and further action.1 AJ's December 6, 2010 Decision, at 3, 9. In so finding, the AJ cited affidavit testimony from M1. Id. at 3.
Regarding claims 2 and 3 (COP), the AJ found that the Agency processed Complainant's COP paperwork on April 16, 2010 and that the one and a half month delay between the COP approval and the processing of the COP paperwork did not constitute an adverse employment action.
The Agency subsequently issued a final order implementing the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant argued that the AJ accepted the Agency's version of the facts even though there was a genuine dispute as to whether M1 had placed her on emergency suspension.
In opposition, the Agency noted that, "[w]hen considered in a vacuum, [Complainant]'s request appears to be reasonable - she was injured on the job and desired consideration for a limited duty assignment within her restriction." The Agency, however, argued that "the Rehabilitation Act's reasonable accommodation requirement was never implicated" because it had immediately placed Complainant in a non-pay status after the accident based on her accident history.
ANALYSIS AND FINDINGS
Standard of Review
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VI.B. (Nov. 9, 1999) (providing that an AJ's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed de novo"). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See EEO MD-110, at Ch. 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
AJ's Issuance of a Decision Without a Hearing
We must first 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.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the AJ must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
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. Dep't of Justice, EEOC Request No. 05940339 (Feb. 24, 1995).
After a careful review of the record, we find that the AJ erred in issuing a decision without a hearing with respect to claim 1 because there is a genuine issue over the nature of Complainant's suspension after the December 2, 2009 accident.
For example, the record contains conflicting testimonial evidence regarding the nature of Complainant's suspension. M1 testified in his affidavit that, pursuant to Article 16.5 of the National Agreement, he suspended Complainant after the accident due to her accident history. ROI, at 109-10. In addition, M1 testified that he verbally notified Complainant of her suspension in the presence of the Supervisor, Customer Services (S1). Id. at 112. In contrast, Complainant testified in her affidavit that M1 verbally informed her that he was temporarily suspending her driving privileges pending the outcome of the accident investigation and that "he had nothing for [her] to do." Id. at 64. In addition, Complainant testified that, even though she had submitted medical documentation releasing her to limited duty, the Agency failed to offer her any work. Id. at 67. In finding that the Agency placed Complainant in a non-duty status and did not simply suspend her driving privileges, the AJ credited M1's testimony over Complainant's testimony.
Moreover, the record contains conflicting documentary evidence regarding the nature of Complainant's suspension. For example, an undated memorandum from M1 stated, "At that time, [Complainant] was informed that she was on suspension ... Currently, [Complainant] is not allowed to work because management is pursuing her removal from the [Agency]." Id. at 220. However, a December 3, 2009 written statement from S1 contained the following description: "[M1] then informed [Complainant] that she would be suspended from driving for the [Agency] at least until a complete investigation was done. He told her that at this point it was temporary and she would be notified if and when she could return to work. [Complainant] said that she needed to work. [M1] said that at this time there is no other work available for her to do and driving at this time is not an option." Id. at 222.
Based on the above, we find that there is a genuine dispute as to whether M1 suspended Complainant by placing her in a non-duty status or whether M1 suspended only Complainant's driving privileges. This dispute is material to the disposition of Complainant's complaint because it affects whether the Agency was obligated to provide Complainant with a reasonable accommodation when she was medically cleared to return to work on January 11, 2010.
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, in appropriate instances, to examine and cross-examine witnesses." See EEO MD-110, at Ch. 7, � I; 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." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995). In summary, there is a genuine issue of material fact which requires an assessment as to the credibility of Complainant and various Agency employees, including M1 and S1. Therefore, judgment as a matter of law for the Agency should not have been granted.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission VACATES the Agency's final order and REMANDS the entire complaint to the Agency in accordance with this decision and the Order below.2
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the Dallas District Office 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 hold a hearing and 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.
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
__6/11/13________________
Date
1 Article 16.5 of the National Agreement stated: "An employee may be immediately placed in an off-duty status (without pay) by the Employer, but remain on the rolls where the allegation involves ... failure to observe safety rules and regulations ... or where the employee may be injurious to self or others. The employee shall remain on the rolls (non-pay status) until disposition of the case has been had."
2 In order to avoid fragmentation, we will not address the merits of Complainant's remaining claims at this time.
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0120111592
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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