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