0120080659
11-24-2010
Doris Birchett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Doris Birchett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120080659
Hearing No. 430-2007-00149X
Agency No. 4K-270-0004-06
DECISION
JURISDICTION
On November 20, 2007, Complainant filed an appeal from the Agency's
October 16, 2007 final order 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. and 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 Administrative Judge properly issued a
decision without a hearing regarding Complainant's claim that she had not
been reasonably accommodated and had been subjected to harassment on the
basis of her disability and in reprisal for prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Postmaster at the Agency's Seagrove Post Office in Seagrove, North
Carolina. As Postmaster at a facility of the size found in Seagrove,
North Carolina, her duties included oversight of the operation of all
functions of the office, including: breaking down mail; sorting mail;
boxing mail; working the retail window; performing observations of her
employees; maintaining office supplies and customer stock; transporting
mail; delivering Express, Priority, or First Class mail when needed; and
performing other administrative/paperwork functions. Complainant worked
the retail window servicing customers up to four hours per day.
On September 29, 2006, Complainant filed a formal EEO complaint alleging
that the Agency discriminated against her on the basis of disability
(right shoulder impingement syndrome, left shoulder rotator cuff tear
with weakness, and neck/cervical degenerative disc disease) and in
reprisal for prior protected EEO activity arising under Title VII and
the Age Discrimination in Employment Act of 1967 (ADEA), in that she has
been subjected to ongoing harassment and has been denied a reasonable
accommodation since 2002. Complainant claimed that she had repeatedly
requested a reasonable accommodation in the form of additional clerk
hours to be allotted to her facility, which would enable her to have a
clerk on staff who would be available to aid her in lifting any parcels
over 15 pounds. Complainant has permanent lifting restrictions of less
than 15 pounds. Over the years that Complainant requested accommodation
of her conditions, beginning in late 2002 through the date of her
complaint, she had a succession of supervisors, which would necessitate
her having to repeatedly explain what her restrictions were and request
accommodation anew.
At the conclusion of the investigation, Complainant was provided with a
copy of the investigative file and she subsequently requested a hearing
before an EEOC Administrative Judge (AJ). The agency submitted a motion
for a decision without a hearing on June 21, 2007, and complainant
submitted her response in opposition to the Agency's motion on July
10, 2007. The AJ issued a decision without a hearing on September 28,
2007, finding no discrimination.
In her decision, the AJ found that there were no genuine issues of
material fact in dispute such that a hearing would be warranted.
The AJ incorporated the Agency's statement of the facts of the case,
as found in its motion for a decision without a hearing. She assumed
that Complainant could show that she was a qualified individual with
a disability, and entitled to a reasonable accommodation. Given that
assumption, the AJ then found that the Agency had satisfied its duty to
reasonably accommodate Complainant, in that she had "reaped the benefit
of a modified work environment for nearly four years," as the Agency
had "allowed her to continue in her capacity as Postmaster and utilize
additional clerk hours at her discretion to reduce the amount of retail
window work and lifting she would have to perform." However, the AJ noted
that "the undisputed record evidence clearly demonstrates that there were
no express terms written or recorded about the accommodation/modification
provided to" Complainant.
Although the AJ stated that "the Agency's handling of the interactive
process was not well documented, conveyed or coordinated along the
successive line of supervisors working with Complainant" and that
"the Agency's administrative and coordinating efforts with respect
to Complainant may have been lackadaisical and riddled with notable
oversight," the AJ concluded that Complainant had ultimately been
accommodated. She noted that an Agency's failure to engage in the
interactive process does not demand a finding for Complainant, and that
although the instant case "did not fit the desired ideal of an interactive
process," Complainant's rights were not violated.
The AJ additionally engaged in a disparate treatment analysis, and
concluded that the Agency proffered legitimate, nondiscriminatory
reasons for its conduct; namely, that Complainant was not treated
any less favorably than other employees, that her work environment
was indeed modified, that her pay and benefits had not been affected,
and she had not been subjected to adverse consequences for her use of
additional clerk hours. The AJ then concluded that Complainant failed to
demonstrate by a preponderance of the evidence that she was discriminated
against under any of her alleged bases.
As to Complainant's claim of harassment based on her disability, the
AJ found that Complainant had not shown that she had been subjected
to actions which were sufficiently severe or pervasive such that a
hostile work environment existed. Complainant claimed that she had
been constantly harassed about her high number of clerk hours and
budget overruns, and that she had been unjustly subjected to a function
audit. The AJ concluded that Complainant was "not immune from performance
reviews and Function Four appraisals at routine intervals."
The Agency subsequently issued a final order adopting the AJ's finding
that Complainant failed to prove that she was subjected to discrimination.
Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant argued that there were material facts in
dispute such that the issuance of a decision without a hearing was
inappropriate. Complainant argued that the facts in dispute included:
1) whether she had been "allowed" to utilize additional clerk hours; 2)
whether she had or had not been penalized for the use of those hours;
3) whether she had made any accommodation request regarding her medical
restrictions; 4) the date on which her most recent manager learned of
her physical condition; 5) whether she had been allowed to use clerk
assistance while the resolution to her Office of Workers' Compensation
Programs (OWCP) claim was pending; and 6) whether her restrictions are
solely preventative in nature or reflect her limited abilities based
on her disabling condition. Complainant also argued that questions of
credibility existed with respect to the statements of Agency managers
regarding their knowledge about her accommodation requests.
In opposition to Complainant's appeal, the Agency argued that the AJ's
decision was adequately supported by the record and had come to the
correct conclusions of law. The Agency urged the Commission to affirm
its final order.
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999). (providing that an administrative judge'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 id. at Chapter 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").
ANALYSIS AND FINDINGS
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);
Murphy v. Dep't of the Army, EEOC Appeal No. 01A04099 (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
administrative judge 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 when
she concluded that there were no genuine issues of material fact
in this case. In finding no discrimination, the AJ relied on the
Agency's representations that Complainant was effectively granted an
accommodation when it tolerated her use of extra clerk hours, with
no penalty. Complainant had argued throughout the processing of this
case that her use of extra clerk hours was unduly scrutinized, and that
the frequent questioning about that use amounted to harassment on the
basis of her disability. Complainant claimed that one of her managers
(MO-1) stated that he would never recommend her for a promotion because
she went over budget in her use of clerk hours.1 She argued that her
then-supervisor (MO-2) ordered a "Function Four" audit of her facility
in early 2006 because of the "overuse of clerk hours." Additionally,
it is a matter of dispute as to how often Complainant was "allowed"
to go over her clerk hours budget in an attempt to accommodate her
restrictions, and therefore in dispute as to whether Complainant was
actually accommodated. Although the Agency argued that her use of extra
hours was tolerated, Complainant has argued that she was "regularly
reprimanded" for it. We find that the AJ should have held a hearing in
order to make credibility determinations as to the relative merits of
Complainant's testimony versus that of the Agency managers who were on
the receiving end of Complainant's requests for assistance in the form
of more clerk hours, or any other effective accommodation.
The Agency disputed that Complainant was a qualified individual
with a disability. We note Complainant's testimony that her lifting
restrictions of 15 pounds or less were permanent, and the ways in which
her conditions affected her major life activities. We also note the
lack of any documentation in the record regarding Complainant's requests
for accommodation, and any written Agency response to each request.
Testimony at hearing will clarify the facts on each issue.
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 Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 7-1 (November 9, 1999); 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 are simply too many unresolved
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.
CONCLUSION
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 VACATES 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 appropriate EEOC field
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 (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. � 1614.604I.
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, 794I. 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
November 24, 2010
Date
1 MO-1 was involved with the selection process for the position of the
Oak Ridge, North Carolina Postmaster position, for which Complainant
had applied. Complainant's non-selection for that position was the
subject of Birchett v. U.S. Postal Serv., EEOC Appeal No. 0120072981
(September 7, 2007). Complainant had applied for a different Postmaster
position at a bigger facility where her duties would not include working
the service window and being required to lift parcels over 15 pounds.
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0120080659
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080659