01A13371
08-01-2002
Gina M. Lanzo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (New York Metro Area), Agency.
Gina M. Lanzo v. United States Postal Service (New York Metro Area)
01A13371
August 1, 2002
.
Gina M. Lanzo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Appeal No. 01A13371
Agency No. 4-A-110-0021-00
Hearing No. 160-A1-8204x
DECISION
INTRODUCTION
This case was brought by Gina M. Lanzo (�complainant�) against the United
States Postal Service (New York Metro Area) (�the agency�). At all
relevant times, complainant worked for the agency as a Modified Letter
Carrier in the agency's Fort Hamilton, New York facility. On or around
December 23, 1999, she filed a formal complaint alleging that the agency
discriminated against her on the bases of her sex (Female) and disability
(severe ankle injury) by (1) failing to grant her overtime, even though
she was on the applicable overtime desired list; and (2) changing the
lock on her work locker without her permission. Complainant was thus
alleging that the agency violated 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 (�the Rehabilitation Act�), as
amended, 29 U.S.C. � 791 et seq.<1>
The agency issued an investigative report on these allegations on or
around October 13, 2000. After receiving this report, complainant
requested a hearing before an administrative judge (�the AJ�) from
the United States Equal Employment Opportunity Commission (�EEOC� or
�the Commission�). However, after reviewing the relevant record, the
AJ issued a decision on this matter without first holding a hearing.
This AJ ruling, released on March 13, 2001, found that the agency had not
discriminated against complainant as she claimed. The agency adopted
this summary judgment decision in full in a final agency order (�FAO�)
issued on March 15, 2001.
Complainant then filed a timely notice challenging this FAO, which we
accepted and docketed as this appeal. We accepted complainant's appeal,
and are now issuing this decision, pursuant to 29 C.F.R. � 1614.405(a).
We are charged with reviewing the AJ's decision to grant summary judgment
in favor of the agency (and the FAO implementing it) de novo (or �anew�).
See EEO Management Directive for C.F.R. 29 Part 1614 (rev. Nov. 9, 1999)
(�EEO MD-110�), at 9-16. This essentially means that we look at the
case with fresh eyes. We are free to accept or reject at will the AJ's
(and agency's) legal and factual conclusions � including conclusions on
the ultimate fact of whether intentional sex-based or disability-based
disparate treatment occurred.
That said, the task before us is really to determine whether the
AJ's decision to rule in favor of the agency without first holding a
hearing was proper. 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 Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); see also 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.
After analyzing all the evidence in this record and considering the
merits of this complaint, we believe that there were no material facts
(i.e., facts that would affect the outcome of the case under governing
law) in genuine dispute here with respect to the lock-changing incident.
Viewing the evidence in the light most favorable to complainant � assuming
the agency did change the lock on her locker without her prior knowledge
or permission � this ostensibly adverse action is insufficient to state
a claim of employment discrimination under the federal laws EEOC is
charged with enforcing.
As we have noted many times in the past, agencies or EEOC administrative
judges may dismiss a complaint that fails to state a claim. See 29
C.F.R. �� 1614.107(a)(1) and 1614.109(b). Agencies generally must accept
(and administrative judges generally must adjudicate) complaints from any
�aggrieved employee� or �aggrieved applicant for employment� who believes
that he or she has been discriminated against by that agency because of
race, color, religion, sex, national origin, age, or disability. See 29
C.F.R. �� 1614.103, 1614.106(a); cf. Marsh v. Department of Interior,
EEOC Appeal No. 01A20127 (Jan. 29, 2002) (holding that �[t]he only proper
questions in determining whether a claim is within the purview of the
EEO process are (1) whether the complainant is an aggrieved employee
and (2) whether she has alleged employment discrimination covered by
the EEO statutes [such as Title VII]�). This Commission's federal
sector case precedent has long defined an �aggrieved employee� as one
who suffers a present harm or loss with respect to a term, condition,
or privilege of employment for which there is a remedy . See, e.g.,
Contreras v. Department of Transportation, EEOC Appeal No. 01A04342
(Feb. 11, 2002) (citing Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (Apr. 21, 1994)). Remarks or comments, unaccompanied by any
concrete agency action, are not usually sufficient to render an employee
�aggrieved� for purposes of stating a valid employment discrimination
claim. See, e.g., Nelson v. Department of Defense (Defense Contract Audit
Agency), EEOC Appeal No. 01A13907 (Sept. 25, 2001). Indeed, an employee
will only be deemed adequately �aggrieved� for this purpose if he or
she �has suffered direct and personal deprivation at the hands of the
employer.� Plummer v. Federal Emergency Management Agency, EEOC Appeal
No. 01990409 (Feb. 15, 2000). In this case, the mere changing of the lock
on complainant's locker � without more � is simply insufficient to have
deprived complainant directly and personally of anything. It certainly
did not cause a harm or loss for which there is any real remedy.
However, we believe the AJ did err in issuing summary judgment on the
question of whether complainant was denied overtime because she is a woman
and is disabled. The agency argued � and the AJ ruled � that there was
no overtime available within complainant's restrictions. Complainant,
in stark contrast, contends that there was such overtime available, and
that she had even worked such overtime frequently in the years leading
up to the filing of her complaint. Complainant apparently presented
the AJ with documentary evidence (i.e., W-2 forms and pay stubs) that
substantiated this claim that she had worked overtime during this period.
There are thus genuine issues of material fact outstanding as to (1)
whether there was any overtime available within complainant's craft;
and (2) whether there was any overtime available within complainant's
craft that complainant could perform (given her medical limitations).
These questions can only properly be answered by having a hearing and then
weighing the credibility of the various parties on the underlying issues.
A hearing is intended to be an extension of the investigative process
itself, and is 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.� EEO MD-110, at 7-1. �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 [his] claims.� Erickson v. United
States Postal Service, EEOC Appeal No. 01A1149 (Oct. 31, 2001); Valdez
v. United States Postal Service, EEOC Appeal No. 01A11835 (Oct. 26, 2001);
and Trimble v. United States Postal Service, EEOC Appeal No. 01A01124
(Aug. 22, 2001). That is exactly what happened here. The AJ took the
agency at its word and rejected complainant's arguments that suitable
overtime was in fact available. The AJ should not have weighed the
credibility of the parties or drawn inferences in the agency's favor in
this manner. For this reason, summary judgment on complainant's claim
concerning the denial of overtime was premature and improper.
CONCLUSION
Accordingly, the AJ's decision and FAO are affirmed insofar as these
rulings found no sex-based or disability-based disparate treatment
with respect to the lock-changing incident. However, the AJ's opinion
and FAO are vacated to the extent they determined that no sex-based or
disability-based disparate treatment occurred with respect to the overtime
denial claim. This case is thus remanded to the appropriate hearings
unit for a hearing on this latter issue, consistent with 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 AJ (or whichever administrative judge
is appointed to conduct the hearing) shall hold a hearing on the issue of
whether the agency committed sex-based or disability-based discrimination
in violation of the Rehabilitation Act by denying complainant overtime.
The AJ shall then issue a decision on this issue in accordance with 29
C.F.R. � 1614.109, and the agency shall issue a final action on this AJ
decision 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 complainant. If the
agency does not comply with the Commission's order, complainant may
petition the Commission for enforcement of the order. See 29 C.F.R. �
1614.503(a). 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, 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.� See
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). If 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 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 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; EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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 complainant's complaint. However, if complainant wishes
to file a civil action, complainant has the right to file such action
in an appropriate United States District Court within ninety (90)
calendar days from the date that complainant receives this decision.
In the alternative, complainant may file a civil action after one
hundred and eighty (180) calendar days of the date complainant filed
complainant's complaint with the agency, or filed complainant's appeal
with the Commission. If complainant files a civil action, complainant
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 complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility
or department in which complainant works. Filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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 complainant's 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 entitled
�Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 1, 2002
__________________
Date
1The Rehabilitation Act of 1973 was amended in 1992 to apply the standards
in the Americans with Disabilities Act (�the ADA�) to complaints of
discrimination by federal employees or applicants for employment.