Frank Montemayor, Jr., Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 10, 2002
01a11880 (E.E.O.C. Sep. 10, 2002)

01a11880

09-10-2002

Frank Montemayor, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Frank Montemayor, Jr. v. United States Postal Service

01A11880

9/10/02

.

Frank Montemayor, Jr.,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A11880

Agency No. 4I-640-0089-98

Hearing No. 280-99-4219X

DECISION

Complainant timely initiated an appeal from a final agency order

concerning his 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 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 Tractor Trailer Operator at the agency's Kansas City Processing &

Distribution Center, Kansas City, Missouri facility. Complainant sought

EEO counseling and subsequently filed a formal complaint on April

24, 1998, alleging that he was discriminated against on the bases of

national origin (Hispanic), age (D.O.B.3/30/43), and reprisal for prior

EEO activity when, on January 26, 1998, he was denied retraining as an

Ad-Hoc Driving Instructor Examiner (DIE).

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 found the following facts were not in dispute: prior to the events

in question, complainant was certified as an Ad-Hoc DIE responsible

for training Tractor Trailer Operators. In May 1996, complainant

testified on behalf of a co-worker at a Merit Systems Protection Board

(MSPB) hearing. During the hearing, complainant testified that he was

never instructed to inform students that they were required to shut off

their vehicles, remove the keys, and lock the cab whenever they parked

to enter a postal facility. It is further not disputed that complainant

was disqualified from his position as an Ad-Hoc DIE following the MSPB

hearing at which he testified. The agency's Human Resource Specialist

averred that complainant was disqualified based upon what the agency

believed were improper statements made at the MSPB hearing regarding

the training complainant received.

In June 1997, complainant filed an EEO complaint alleging he was

retaliated against for his testimony during the MSPB case. The case

was eventually dismissed for untimely EEO contact.

Thereafter, on January 5, 1998, complainant submitted a request to be

considered as an Ad-Hoc DIE. His request was denied, and complainant

filed a grievance over the matter, as well as the instant EEO complaint.

The record reveals complainant eventually received the training, but

argues that he was denied back pay for the time he was disqualified.

As an initial matter, the AJ found that complainant's claim that he

was retaliated against for his MSPB hearing testimony failed to state a

claim, since the EEOC does not have jurisdiction over the MSPB aspect of

the case. The AJ also concluded that complainant failed to establish a

prima facie case of national origin or age discrimination, noting that

complainant failed to identify any similarly situated individual who

was treated more favorably under similar circumstances. Indeed, the

AJ found that one of complainant's co-workers was also denied training

after testifying at the MSPB hearing. As for complainant's claim of

retaliation for his June 1997 EEO complaint, the AJ found complainant

established a prima facie case of retaliation, since his protected

activity occurred only six months prior to the adverse action at issue.

The AJ then concluded that the agency proffered legitimate,

nondiscriminatory reasons for denying complainant re-training, namely,

that complainant had provided improper information during the MSPB hearing

regarding postal policies, and as such, complainant was not qualified

to work as an Ad-Hoc DIE. In reaching this conclusion, the AJ noted

that it would not be unlawful for an agency to take an action against an

individual for something spoken at the MSPB hearing, so long as the action

wasn't taken because the individual provided the testimony. The AJ then

concluded that complainant failed to demonstrate by a preponderance of the

evidence that he was discriminated against under any of his alleged bases.

On December 22, 2000, the agency issued a final action that implemented

the AJ's decision.

On appeal, complainant contends, among other things, that he was never

required to instruct Tractor Trailer Operators to shut off the vehicle,

and lock the door when parked at a postal facility. Complainant argues

that he told the truth at the MSPB hearing, and supplied statements from

other co-workers supporting his assertion.

The agency stands on the record and requests that we affirm its final

action implementing the AJ's decision.

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, 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.

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).

As an initial matter, we note that the AJ erred when he determined that

complainant's claim that he was retaliated against for providing testimony

at an MSPB hearing failed to state a claim under our Regulations.

29 C.F.R. � 1614.103 (a) states that complaints alleging retaliation

prohibited by Title VII, the ADEA, and the Rehabilitation Act are

considered complaints of discrimination for purposes of our Regulations.

The record reveals complainant provided testimony during a hearing wherein

a co-worker alleged he was subjected to race and age discrimination.

As such, we find the instant complaint properly alleges a violation of

our Regulations since complainant alleged that he was retaliated against

for participating in protected activity under Title VII and the ADEA.

After a careful review of the record, we find that the AJ erred when he

concluded that there was no genuine issue of material fact in this case.

In finding no discrimination, the AJ relied on the representations of

management officials as provided in their affidavit wherein they averred

the reason complainant was not retrained was because of testimony given

at an MSPB hearing, where a co-worker alleged, among other things, race

discrimination. Specifically, the agency's Human Resources Specialist

averred that she disqualified complainant because he testified as

to erroneous postal policies. Complainant disputes this assertion,

and argues that he testified as to appropriate postal policies as he

understood them. Although the AJ found that complainant was denied

retraining because of what he said at the MSPB hearing, as opposed to

where he said it, we find this line is too narrow to have been resolved

without a hearing. Rather, the question as to the reason complainant

was denied retraining involves a credibility dispute that can only be

resolved after examining the testimony of witnesses at a hearing.

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 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 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, himself. 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 St. Louis District

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

9/10/02

Date