0120102456
07-16-2012
Gregory Young, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Gregory Young,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120102456
Hearing No. 461-2009-00127X
Agency No. 4G-700-0042-09
DECISION
Complainant timely filed an appeal from the Agency's April 15, 2010, final order concerning his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 EEOC Administrative Judge (AJ) properly issued a decision without a hearing while the parties were still engaged in discovery.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Postmaster, Executive Administrative Schedule-18 (EAS-18), at the Homer, Louisiana, Post Office. Complainant began his career with the Agency on September 23, 1978. On July 18, 2007, Complainant requested a detail to the Meriwether Station in Shreveport, Louisiana, but the Agency selected a White male (S1) for the assignment. At the time of his appointment, S1 was supervised by Complainant.
On May 20, 2008 the Agency posted a vacancy announcement for a Customer Services Manager, EAS-21, position in Shreveport. All EAS career employees were eligible to apply for the position, but only Complainant applied for the position. The Agency announced the position a second time, and Complainant and four other applicants applied for the position. The Agency did not make a selection from the second announcement. After a third announcement, the Acting Postmaster for Shreveport (Acting Postmaster) interviewed Complainant and other applicants. Four of the applicants were African American males born in the 1950s and two applicants were non-Black males. The Agency selected a White male applicant born in 1970, who was an EAS-20 Customer Services Manager at the Oxford, Alabama, Post Office (S2).
S2 had approximately 17 years of experience with the Agency and 15 years of experience at the EAS level. The Acting Postmaster selected S2 for the position, with the concurrence of the Postal Operations Manager and the Area Manager.
In a letter dated December 26, 2008, Complainant requested an assignment to a position that comported with his medical conditions. Complainant also provided management with documentation from his physician that stated that he needed to keep his feet dry and limit his amount of standing. In a letter dated January 20, 2009, the Acting Manager of Post Office Operations informed Complainant that his request for a reasonable accommodation had been reviewed, but the documentation he submitted was "vague as to what type of activity you are restricted from performing." Investigative File (IF), pp. 310, 311. The letter further stated that there was no indication that Complainant was limited in the duties required by his Postmaster position; therefore, the Agency denied his request for an accommodation.
In a letter dated January 23, 2009, Complainant submitted the following additional documentation from a physician:
Mr. Gregory Young was evaluated on this date complaining about his neuropathy. The neuropathy is directly related to the severe frost bite injury the patient sustained years ago. The condition has been increasing in severity over the years and should continue to increase. The patient was advised about the possible benefits of Lyrica. He was also strongly advised that a pain management clinic should be utilized. The patient was also advised to stay away from any temperatures below fifty degrees. The patient needs to keep his feet as dry as possible. He should also limit the amount of standing to five minutes at a time throughout the day to help diminish the changes in the tissue of both feet. He can only walk no more than a block at a time and then he has to take a break due to his feet hurting. The patient's driving to work should be limited to about thirty miles one way. His feet bother him due to the continuous pushing on the gas pedal. It would be much safer for him to limit these miles to thirty or less. If the mileage were limited, he wouldn't have to stop to rest his feet.
IF, p. 219.
On January 5, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), sex (male), disability (Neuropathy, numbness/pain in hands in feet), age (born December 1957), and in reprisal for prior protected EEO activity when:
1. On July 18, 2007, the Agency denied his request to be detailed into the position of Manager at the Shreveport, Louisiana Meriwether Station;
2. On October 24, 2008, the Agency failed to select him for the position of EAS-21 Manager of Customer Services at Southfield Station in Shreveport; and
3. The Agency failed to respond to his December 26, 2008 request for a reasonable accommodation.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
On September 22, 2009, the AJ issued an Acknowledgement Order, which ordered the parties to initiate written discovery within 20 days of receipt, or by October 17, 2009. Complainant did not submit his discovery request to the Agency until October 30, 2009. In that request, Complainant asked the Agency to make 25 admissions under oath in writing and requested 19 documents, including training records, email exchanges, assignment orders (Form PS 1723), the training manual for EAS selections, and interview questions for all Southfield Manager applicants in 2007 and 2008. The request stated that the Agency must respond within 30 days of receiving the request. On November 28, 2009, the Agency denied Complainant's request on the basis that it was untimely submitted. On December 1, 2009, Complainant moved to retroactively extend the deadline to initiate discovery to October 30, 2009. On December 17, 2009, the Agency moved for a decision without a hearing. On January 29, 2009, the AJ approved Complainant's request to retroactively extend the deadline for discovery.
In a document dated February 12, 2010, Complainant requested that the Agency provide additional documents, including copies of e-mail exchanges between the Acting Postmaster of Shreveport (Acting Postmaster) and an EEO Specialist and between the Manager of Postal Operations for the Louisiana District and the EEO Specialist. On February 16, 2010, the Agency responded to Complainant's initial discovery request for admission. Additionally, the Agency provided Complainant with 11 requested documents and responded that eight requested documents were unavailable or never existed, including documentation regarding the assignment of the Acting Postmaster to Customer Service or Officer-in-Charge assignments, copies of all questions posed to applicants for Southfield Manager positions in 2007 and 2008, a copy of the Acting Manager of Post Office Operations training record, and all e-mail exchanges between the Acting Manager and three employees (including Complainant) in 2008. On March 12, 2010, the Agency replied to Complainant's request for interrogatories. The Agency also responded to Complainant's request for additional documents by informing Complainant that it could not provide copies of the requested e-mails because e-mails over 30 days old were not retrievable.
The AJ's Decision
On April 8, 2010, the AJ issued a decision without a hearing in which he stated that Complainant did not respond to the Agency's motion for a decision without a hearing. In that decision, the AJ further found that, although Complainant moved for an extension of the time to initiate discovery well after the expiration of the discovery deadline, the AJ approved Complainant's request during a status conference on January 29, 2009. The AJ further stated that he ordered the Agency to respond to Complainant's discovery request within 15 days of the January 29, 2009, status conference and granted Complainant an additional 15 days after he received the Agency's discovery responses to respond to the Agency's motion for a decision without a hearing. The AJ noted that on February 18, 2009, Complainant filed a "Complainant's Request for Production of Additional Documents" in which he made an additional request for the production of documents upon the Agency, but the AJ disapproved this request on the grounds that Complainant did not set forth any reasons why such an extension of time beyond the initial discovery period was necessary. The AJ further found that Complainant's request for additional documents was overly broad, vague, and unlikely to lead to the discovery of relevant evidence.
The AJ found that Complainant is an individual with a disability because he is substantially limited in the major life activity of walking. However, the AJ found that Complainant was not subjected to unlawful discrimination. Specifically, the AJ concluded that, regarding the detail assignment, the Agency explained that Complainant was not selected because the Postmaster of Shreveport did not supervise Complainant, and therefore, lacked the authority to place Complainant into the assignment under her supervision. Regarding claim 2, the AJ found that Complainant failed to establish a prima facie case of sex discrimination because the selectee is male. The AJ concluded that the Agency explained that Complainant was not selected for this position because he lacked the experience necessary to manage a post office the size of Southfield, whereas the selectee was an EAS-20 manager at a large post office. The AJ also noted that the selecting official explained that Complainant's interview responses did not demonstrate that he had the necessary delivery knowledge to lead a station the size of Southfield, and Complainant's resume was devoid of commendations for superior performance or attendance. The AJ concluded that Complainant's failed to provide any evidence from which it could be concluded that the Agency's explanations were pretext for unlawful discrimination.
Regarding Complainant's reasonable accommodation claim, the AJ found that Complainant failed to prove that the Agency failed to reasonably accommodate his disability. The AJ reasoned that, in light of the vagueness of the restrictions contained in the physician's December 28, 2009, note and the nature of his accommodation request, the Agency properly determined that it could not act on Complainant's December 2009 request. The AJ further found that, although Complainant later submitted additional medical information, he retired shortly thereafter. The AJ determined that Complainant's request for a shorter commuting distance to work presumptively constituted a request for reassignment, and there no evidence that a vacant, funded position existed for which Complainant was qualified to be reassigned during the relevant time period. The AJ also determined that there was no evidence that Complainant pursued the interactive process after he tendered his retirement. The Agency subsequently issued a final order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ improperly issued a decision without a hearing in favor of the Agency because he and the Agency were engaged in discovery at the time the AJ issued his decision. In support of his claim, Complainant submits a copy of a letter from Complainant to the AJ dated February 1, 2010. In that letter, Complainant stated that on January 29, 2010, he and the Agency had a teleconference with the AJ to determine the status of the case. The letter further stated that during the teleconference, the AJ granted Complainant's motion to extend the discovery deadline for 15 days. The letter also stated that the Agency waived its right to resubmit its motion for a decision without hearing in the future, but Complainant would have 15 days after the conclusion of discovery to respond to the Agency's previously submitted motion for a decision without a hearing.
Complainant contends that the letter was the "abiding understanding that governed the discovery process." Complainant further contends that the AJ mistakenly confused the 15-day deadline for the Agency to respond to discovery request with the amount of time he had to respond to the Agency's motion for a decision without a hearing. Additionally, Complainant submits correspondences between Complainant and the Agency on April 7 and 8, 2010. Complainant contends that these correspondences reflect that he and the Agency understood that discovery was still in process at the time the AJ issued his decision. The Agency requests that we 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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 the 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 Chap. 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").
Decision without a Hearing
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 Defense, EEOC Appeal No. 01A24206 (July 11, 2003). As explained below, we find that the AJ improperly issued a decision without a hearing because there are genuine issues of material fact and credibility at issue in this case.
Discovery
In this case, the AJ deemed Complainant's October 30, 2009, discovery request as timely during a teleconference on January 29, 2009. The AJ's decision reflects that the AJ ordered the Agency to respond to Complainant's discovery request within 15 days of the teleconference. The Agency submitted its response to Complainant's discovery request on February 16, 2009. However, Complainant and the AJ disagree about the AJ's orders with respect to the conclusion of discovery and Complainant's opportunity to respond to the Agency's motion for a decision without a hearing. The AJ's decision states that, during the teleconference, the AJ ordered Complainant to respond to the Agency's motion for a decision without a hearing within 15 days after he received the Agency's discovery responses. Complainant maintains, however, that the AJ ruled that Complainant would have 15 days after the conclusion of discovery to respond to the Agency's previously submitted motion for a decision without a hearing.
As an initial matter, we note that it is difficult to ascertain what the AJ ruled during the teleconference because the AJ's orders were never confirmed in writing. Nevertheless, we note that, one day after the teleconference, Complainant submitted a memorandum to the AJ which purported to memorialize the AJ's orders. In that memorandum, Complainant recounted that the AJ granted his request to retroactively extend the deadline to initiate discovery and gave Complainant 15 days after the conclusion of discovery to respond to the Agency's motion for a decision without a hearing. The record reflects that on April 7 and 8, 2010, Complainant and the Agency were still involved in discovery. For instance, in an email correspondence dated April 7, 2010, Complainant informed Agency counsel that the Agency had failed to respond to Complainant's discovery requests. On April 8, 2010, Agency counsel informed Complainant that he was going to look for requested discovery items when he went to Shreveport on April 15, 2010. Complainant's Appellate Exhibit 3. Agency counsel further stated that Complainant may want to check the Acknowledgment Order to determine the timeline for responding to discovery requests.
Based on these correspondences, we are persuaded that discovery was ongoing when the AJ issued a decision without a hearing on April 8, 2010. In so finding, we note there is no evidence that the AJ specified a date by which discovery would end. Although the September 2009 Acknowledgement Order provided that discovery would end 90 days after receipt of the Order, the AJ's subsequent order effectively superseded that discovery deadline. The AJ's subsequent teleconference order revived discovery on January 29, 2009. While the AJ ordered the Agency to respond to Complainant's discovery requests within 15 days, the AJ did not specify when discovery would end. Further, the failure to reduce the AJ's teleconference orders to writing understandably compounded the confusion about the deadlines for discovery and motions. At any rate, it is apparent that both parties believed that discovery was ongoing at the time the AJ issued his decision. Considering Complainant's pro se status and the unusual circumstances in this case, we find that the AJ erred in ruling on the Agency's motion for a decision without a hearing prior to the resolution of the parties' pending discovery exchanges. The timing of the AJ's ruling effectively precluded Complainant from demonstrating genuine issues of material fact. See Shimitz v. Dep't of Agriculture, EEOC Appeal No. 0120080675 (Apr. 12, 2012); Menoken v. Social Security Administration, EEOC Appeal No. 01A32052 (Jan. 3, 2005), citing, Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
On appeal, the Agency does not contest Complainant's claim and evidence that discovery was ongoing when the AJ issued his decision. Instead, the Agency argues that Complainant's claims have no merit. That may well be. We cannot know that for certain, though, unless and until the AJ ensures that the record has been adequately developed for a hearing, and that Complainant has had a fair, ample opportunity for appropriate discovery. See Purvis v. U.S. Postal Serv., EEOC Appeal No. 0120072214 (Sept. 13, 2007). Once these criteria are met, nothing will preclude the Agency from renewing its motion for a decision without a hearing. However, on remand, the AJ must first clearly specify in writing when discovery will conclude and the time limits for submitting and responding to motions.
We further note that at this time there remain genuine issues of material fact in dispute. For instance, Complainant contends that, contrary to the Agency's assertion, S1 was not under the supervision of the Postmaster of Shreveport when he was selected to the detail assignment. Complainant further asserts that the prior Manager of Customer Services at Southfield Station did not possess the type of qualifications that it used to eliminate Complainant from consideration. Additionally, Complainant contends that the Agency's Shreveport officials have never placed an African-American male in a manager's position. Finally, we note that the Manager of Post Office Operations acknowledged that the Agency's District Reasonable Accommodation Committee (DRAC) was not consulted about Complainant's request for a reasonable accommodation. Moreover, we find that the record does not contain any evidence regarding the existence of vacant, funded positions within Complainant's restrictions during the relevant time period. These matters are material to determining the merits of Complainant's complaint, and may require the benefit of a hearing to determine credibility.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the AJ's finding of no discrimination and the Agency's final order implementing it. We REMAND this case for further proceedings in accordance with this decision and the ORDER below.
ORDER
The Agency shall submit to the Hearings Unit of the New Orleans 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 (K06101)
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. � 1614.604(c).
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, 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
July 16, 2012
Date
1 The record reflects that Complainant requested voluntary early retirement on February 2, 2009.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120102456
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102456