0120093558
02-04-2010
Edith A. O'Connell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Edith A. O'Connell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093558
Hearing No. 520-2008-00267X
Agency No. 4B-018-0076-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 16, 2009 final action concerning an equal
employment opportunity (EEO) complaint claiming 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
ISSUE PRESENTED
The issue presented by this appeal is whether the instant EEO complaint
was appropriately adjudicated by summary judgment in favor of the agency.
BACKGROUND
During the period at issue, complainant was employed as a Temporary Relief
Rural Carrier at the agency's Tewksbury, Massachusetts Post Office.
On December 28, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against her
on the bases of race (Asian, Filipino), sex (female), and age (over 40)
when, on or about August 30, 2007, she was issued a Notice of Separation
from employment.
Following the investigation into her formal complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On June 25,
2009, the AJ issued a decision by summary judgment in favor of the agency.
The agency fully implemented the AJ's decision in its final action. The
instant appeal followed.
The AJ found that complainant did not show by a preponderance of the
evidence that she was discriminated against on the bases of race,
sex and age. Specifically, the AJ determined that complainant was
removed from agency employment during her limited appointment because
of inadequate job performance, customer complaints and a preventable
postal vehicle accident. Finally, the AJ concluded that complainant
did not prove, by a preponderance of the evidence, that the agency's
proffered reasons for its action were a pretext for discrimination.
In support of his decision, the AJ further noted that the Postmaster
(PM) stated that she was the official who decided to remove complainant
from agency employment. PM stated that on August 28, 2007, complainant
called the facility to report that her mirror was broken. PM stated
that she asked complainant where she was and met her on the scene.
PM said that complainant, "stated that she did not realize that she hit
anything, but believes she stuck an overhanging peach tree branch..."
PM stated that she and the Supervisor of Customer Services conducted an
onsite investigation. PM averred that, "after my preliminary accident
investigation, on the scene, I suspended [complainant's] postal driving
privileges. I drove the employee back to the office and had someone
else finish her route. Finally, I concluded that this accident was in
fact preventable." PM further stated that on August 30, 2007, she sent
complainant a Notice of Separation. PM stated that, "the conclusion
was that her performance was well below acceptable performance level."
PM stated that temporary employees "are not given the same grievance
rights as full-time regular employees. Temporary employees are just that;
temporary, and can be released at any time for any reason. If I remove
an employee it is for just cause."
The Supervisor of Customer Services (SCS) stated that while complainant,
"is a very nice lady, I just don't think she was cut out to be a letter
carrier. There were many nights when we missed the last truck because
[complainant] could not make it back in time. She was unable to make
the evaluated route authorized time, causing unnecessary overtime.
There were many customer complaints, most of which I did not document.
I often had to deliver that route, and while out there, customers would
complain to me about [complainant]."
On appeal, complainant, through her attorney, argues that she did not have
sufficient time to respond to the agency's Motion for Summary Judgment
before the AJ granted it. Specifically, complainant argues that on or
about June 19, 2009, she received the agency's motion for summary judgment
dated June 15, 2009, but that the AJ, "issued his decision on June 26,
2009, a mere six days later. By acting in such haste, the AJ issued a
decision without affording the Complainant sufficient time in which to
file her response, and thus, the case should be remanded to the AJ for
a hearing."
Further, complainant argues that material facts are in dispute in
this case. Complainant notes these facts include whether the vehicular
accident of August 28, 2007, resulting in very minimal damage to the
mirror on an agency vehicle, was properly investigated and conducted
reasonably and in a fair manner; whether the postmaster's determination
that the damage was preventable was supported by the facts; and whether
the termination notice citing "poor performance" was baseless, in
light of complainant's record being devoid of any disciplinary actions,
including formal discussions. Complainant further asserts a pattern of
discrimination action at the agency facility against minority employees;
and that the only employees recently terminated for motor vehicle
accidents were two minority employees. Complainant argues that there
exists a de facto policy of racial discrimination within the district
where complainant is employed, and that white employees have not been
terminated despite having motor vehicle accidents which involved serious
damage.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a final
decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b),
the agency's decision is subject to de novo review by the Commission.
29 C.F.R. � 1614.405(a).
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). 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. Catreet, 477 U.S. 317, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
"material" if it has the potential to affect the outcome of a case.
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.
If a case can only be resolved by weighing conflicting evidence, a
hearing is required. 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.
See 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." Redmond 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). "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). 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, November 9, 1999, Chapter 6, page 6-1; see also 29 C.F.R. �
1614.109(d) and (e).
Under the particular circumstances of this case, the record supports
complainant's contention that she was denied an opportunity to respond
to the agency's motion for summary judgment before the AJ issued his
decision. The regulation at 29 C.F.R. � 1614.109(g)(2) states that the
party opposing a motion for summary judgment must be provided fifteen
(15) days from receipt of the motion in which to file a response. We note
that a review of the record reflects that the agency's motion for summary
judgment is dated June 15, 2009, complainant represents she received
it on June 19, 2009, and the AJ issued his decision on June 25, 2009.
This record clearly indicates that complainant was not provided fifteen
(15) days from receipt of the agency's June 15, 2009 motion for summary
judgment in which to file her response.
In ruling on a Motion for Summary judgment, the evidence of the
non-moving party must be believed and all justified inferences must be
drawn in the non-moving party's favor. This case contains conflicting
evidence as to what the real motivation was for removing complainant
from agency employment. In order to resolve the conflict, the fact
finder must determine whether the agency's explanation is more credible
than complainant's. Accordingly, in this case, issuance of a decision
without a hearing was not warranted under 29 C.F.R. � 1614.109(g).
Here, complainant argues that if she had sufficient time to respond
to the agency's motion for summary judgment, she would have raised the
existence of a pattern and practice of discrimination against minority
employees, including complainant; that other non-minority employees
with more serious accidents were not terminated; and that the agency's
assessment that complainant's termination was further predicated, in part,
upon complainant's purportedly inadequate work performance was belied
by a record that was devoid of prior disciplinary action. Given these
circumstances, the Commission determines that summary judgment in this
case was inappropriate.
Accordingly, the Commission VACATES the agency's final action and REMANDS
the matter to the agency for further processing in accordance with the
ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC's New York
District Office the request for a hearing, as well as the complaint file,
within thirty (30) 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 of the New York District Office. 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 (K1208)
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 (M1208)
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, 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 (R0408)
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 (Z1008)
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
February 4, 2010
__________________
Date
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0120093558
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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