01991343
02-20-2002
Gwen D. Wanzo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gwen D. Wanzo v. United States Postal Service
01991343
02-20-02
.
Gwen D. Wanzo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01991343
Agency No. 4F-945-0051-97
Hearing No. 370-98-X2112
DECISION
Complainant timely initiated an appeal from a final agency action
concerning her 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. Complainant
alleges she was discriminated against on the bases of her race (Black),
sex (female), and age (date of birth: March 18, 1954), when her work
assignment was changed from Tour 3 to Tour 1 effective November 4, 1996.
For the following reasons, we reverse and remand the final agency decision
(FAD).
The record reveals that during the relevant time, complainant was employed
as a Supervisor, Distribution Operations at the agency's San Leandro,
California facility. Complainant was assigned to Tour 3. While she was
on detail to Oakland, complainant's assignment was changed from Tour 3
to Tour 1. The agency's stated reason for the change was in response to
another employee's request for a break from Tour 1. Complainant alleged
that African American females were sent to the less desirable tours
and that no one who was not an African American was required to fill
those positions. She said, �I was sent on more details than anyone
else in the facility and had my tour changed more than anyone else.�
(Complainant's statement of December 28, 1998). Believing she was
a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a formal complaint on December 24, 1996. At the
conclusion of the investigation, complainant was provided a copy of the
investigative file and requested a hearing before an Equal Employment
Opportunity Commission (EEOC) Administrative Judge (AJ).
The AJ issued a decision without a hearing finding no discrimination. The
AJ concluded that complainant failed to establish a prima facie case
of discrimination because she failed to prove that someone similarly
situated who is not Black, female and/or younger than complainant was
treated more favorably than herself. The AJ also concluded that because
several of the comparative employees are of the same protected class
as complainant and the majority are over age 40, complainant failed to
establish a prima facie case of race, sex or age discrimination based
on disparate treatment. The AJ did not address the agency's proffered
legitimate, nondiscriminatory reasons, namely, that all supervisors are
treated the same and that supervisors are rotated as needed. The agency's
final action implemented the AJ's decision.
On appeal, complainant contends, among other things, that the AJ erred
in determining that complainant had not established a prima facie case
of discrimination and by entering credibility determinations on the
agency's intent, without the benefit of a hearing. 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. 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 does not
sit as a fact finder. Id. 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. A disputed 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 under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
The record does not show whether the Tour 3 position was vacant and that
question of fact cannot be determined from the record currently before
the Commission. Moreover, the record shows that a supervisor (male,
under age 35) did not lose his tour assignment while he was on detail,
although the record is unclear as to the time of his employment.
We note that there is credible evidence in the record that indicated that
other non-Black supervisors were treated more favorably than complainant;
and that she was repeatedly reassigned and moved to different positions,
while five other individuals who were not in her racial/gender group were
allowed to remain in their positions for three years. The record contains
evidence, that of the supervisor schedules that reflect the assignments,
but the record does not show whether unlawful race discrimination was a
factor in the agency's decision to accord accommodation to the request
of one supervisor over the request of complainant.
After a careful review of the record, we find that the AJ erred when
she concluded that there was no genuine issue of material fact in this
case. The issue in dispute is whether unlawful considerations of race,
sex or age influenced the agency's decision to change complainant's tour
assignment to accommodate the request of another supervisor (who was
not female or black) for Tour 3, or when it permitted another supervisor
(male and under age 40) to keep his tour assignment at San Leandro
while on detail. In finding no discrimination, complainant says that
AJ erred in determining the Tour 3 supervisor work assignment was not
vacant at the time of the supervisor's request. The AJ relied on the
representations of management officials as provided in statements to
find that other supervisors have also been assigned to different jobs
and that complainant's change in work assignment from Tour 3 to Tour 1
was a response to provide another supervisor a break from Tour 1. The
AJ also concluded that the only comparative employee with respect to the
issue of age was no longer an employee during the times relevant to the
instant complaint. These are disputed factual issues that were resolved
by summary judgment, without the benefit of a hearing.
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). 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 6, page 6-1; see also
29 C.F.R. �� 1614.109(d) and (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). 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 herself. Judgment as a matter of law for the agency
should not have been granted as to complainant's claim that she denied
assignment to Tour 3 because of her race, sex or age.
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 EEOC San Francisco
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 (including pleadings and statements
submitted to the AJ) to the EEOC San Francisco 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
____02-20-02______________
Date
MEMORANDUM
TO: Hearings Unit, San Francisco District Office
FROM: Carlton M. Hadden, Director
DATE: December 17, 2001
RE: Gwen D. Wanzo v. United States Postal Service, EEOC Appeal
No. 01991343
Enclosed is a DECISION requiring the above referenced complaint be
assigned to an Administrative Judge. We request that the Administrative
Judge notify the Compliance Division at the Office of Federal Operations
after a decision has been issued. If there are any questions concerning
the further processing of this complaint, please contact Robert Barnhart,
Acting Director of Compliance and Control, at (202) 663-4525.