EEOC Appeal No. 0120150251
06-06-2017
Iris D. v. U.S. Postal Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Iris D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120150251
Hearing No. 570-2013-00334X
Agency No. 1K-209-0026-10
DECISION
Complainant timely filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 25, 2014, final order concerning her 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission VACATES the Agency's final order.
ISSUE PRESENTED
The issue presented is whether Complainant established that there was a genuine issue of material fact such that the Equal Employment Opportunity Commission Administrative Judge's (AJ) issuance of a decision without a hearing was not appropriate.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a Mail Processing Clerk at the Agency's Suburban Maryland Processing and Distribution Center in Gaithersburg, Maryland. Complainant worked a limited-duty assignment in the Nixie section for four hours per day, five days per week.2
Complainant's first-level supervisor was the Supervisor, Distribution Operations (S1), who supervised the Nixie section. Complainant's second-level supervisor was the Manager, Distribution Operations (S2). Complainant's third-level supervisor was the Plant Manager (S3).
On November 1, 2010, Complainant filed a formal EEO complaint alleging that the Agency subjected her to hostile work environment harassment on the bases of race (African-American), color (black), and disability (physical) when, beginning in September 2010:3
1. S1 was hostile and verbally abusive towards her daily. Specifically, Complainant cited the following incidents:
a. On September 7, 2010, when she was in the Nixie section, S1 yelled at her, "Get out of my section right now, you will no longer be working in the Nixie" and "I told you to get out and go to 030 right now and I will not tell you anymore, get out right now."
b. On September 10, 2010, when she went to the Nixie section to put her leave slip in the file cabinet, S1 told her, "Get out right now, you do not listen. I told you to stay out of this section and stay in the break room until you go home." S1 then snatched the leave slip out of her hand and threw it at her.
2. S1 did not permit her to be on the workroom floor and instead required her to remain in the break room for four hours daily.
On November 30, 2010, the Agency dismissed Complainant's complaint for failure to state a claim. Complainant appealed the dismissal. In EEOC Appeal No. 0120111208 (Sept. 13, 2012), the Commission found that Complainant's allegations were sufficient to state a claim of hostile work environment harassment, reversed the Agency's dismissal, and remanded the complaint to the Agency for an investigation.
After the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Administrative Judge. Complainant timely requested a hearing. On May 2, 2014, the Agency filed a motion for a decision without a hearing. On May 12, 2014, Complainant filed an opposition to the Agency's motion.
On September 8, 2014, the AJ granted the Agency's motion, and issued a decision finding no discrimination. Regarding incident 2, the AJ cited management's affidavit testimony that it required Complainant to remain in the break room for four hours daily because there was not even enough work to support the two employees (C1 - Asian, no disability; C2 - Caucasian, White, no disability) who had regular bid assignments to the Nixie section where she worked. Although Complainant argued that C1 and C2 worked overtime, the AJ found that C1 and C2 were not similarly situated because they had no medical restrictions. Although Complainant argued that another employee (C3 - Caucasian, White, disability status unknown) worked in the Nixie section, the AJ found that C3 was not similarly situated because S1 averred that he did not supervise C3. Based on the above, the AJ found that Complainant did not establish a claim of disparate treatment or hostile work environment harassment.
On September 25, 2014, the Agency issued a final order fully implementing the AJ's decision. Complainant then filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that the Commission remand her complaint for a hearing. Among other things, regarding incident 2, Complainant argues that the Agency's reason for requiring her to remain in the break room for four hours daily, i.e., the lack of work in the Nixie section, was not credible because more than enough work was available each day. Specifically, Complainant asserts that C1 and C2 worked overtime in the Nixie section. In addition, Complainant asserts that C3, whose bid assignment was not in the Nixie section, worked in the Nixie section verifying waste mail.
The Agency did not submit a brief or statement in opposition to Complainant's appeal.
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), Ch. 9, � VI.B (Aug. 5, 2015) (providing that an AJ's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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 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 EEO MD 110, Ch. 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").
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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 Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without 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. Dep't 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, in appropriate instances, to examine and cross-examine witnesses." See EEO MD-110, Ch. 7, � I; 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." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (April 25, 1995).
After a careful review of the record, we find that the AJ erred in issuing a decision without a hearing with respect to incident 2 because there is a genuine issue of material fact regarding the Agency's explanation for its actions.
The record contains affidavit testimony from management that Complainant was not permitted on the workroom floor and was required to remain in the break room for four hours daily because of the low volume of mail in the Nixie section. For example, S1 averred that he ordered Complainant to remain in the break room "as per instructions from [S2]." ROI, at 145, 147. In addition, S2 averred that "the assignment [Complainant] had been working had only enough volume to support the two employees [C1 and C2] who[se] bid assignment" it was. Id. at 160. Moreover, S3 averred that employees are placed in the break room during "standby time" as required by "volume and assignments." Id. at 184.
The record, however, contains conflicting affidavit testimony from Complainant about the volume of mail in the Nixie section. For example, Complainant averred that management allowed C1 and C2, two Nixie clerks, to work overtime. Id. at 126. This testimony about overtime, i.e., time someone works beyond normal working hours, contradicts management's testimony that the volume of mail could not support more than two employees. Although the AJ found that this testimony was immaterial because Complainant had medical restrictions and C1 and C2 did not, we note that management did not cite Complainant's medical restrictions as a factor. In addition, Complainant averred that management allowed a non-Nixie employee (C3) to come and work in the Nixie section. Id. at 124, 126. This testimony also contradicts management's testimony that the volume of mail could not support more than two employees. Although the AJ found that this testimony was immaterial because S1 averred that C3 "was not [his] employee," we note that Complainant merely averred that C3 performed worked in the Nixie section (the section supervised by S1). Id. at 124, 126, 151. The fact that S1 did not supervise C3 would seem irrelevant with respect to whether there was work available that Complainant could have performed.
The record does not contain any documentary evidence pertaining to the volume of mail in the Nixie section, the amount of overtime worked by C1 and C2, or the supervision of C3. To resolve the conflicting affidavit testimony from management and Complainant, the AJ improperly weighed the affidavit testimony and made credibility determinations. In view of the interrelated nature of the claims in Complainant's complaint, and to avoid fragmentation, we will remand the entire complaint for a hearing before an AJ.
CONCLUSION
In summary, we find that there is a genuine issue of material fact which requires an assessment as to the credibility of S1, S2, S3, and Complainant. Therefore, judgment as a matter of law for the Agency should not have been granted. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission VACATES the Agency's final order and REMANDS the entire complaint to the Agency in accordance with this decision and the Order below.
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the Dallas District Office within fifteen (15) calendar days of the date this decision is issued. 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 hold a hearing and 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 (K0610)
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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
___6/6/17_______________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Because of her medical restrictions, Complainant was able to work only four hours per day. Complainant was paid by the Department of Labor's Office of Workers' Compensation Programs for the remaining four hours.
3 For purposes of clarity, we have rephrased and renumbered the incidents based on Complainant's affidavit testimony.
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