01A12964
09-17-2002
Julie D. Hoffman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Julie D. Hoffman v. United States Postal Service
01A12964
September 17, 2002
.
Julie D. Hoffman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 01A12964
Agency No. 4E-852-0019-99
Hearing No. 350-99-8365X
DECISION
Complainant timely initiated an appeal from a final agency order
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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission reverses
the agency's final order.
The record reveals that during the relevant time, complainant was employed
as a Clerk at the agency's Coronado Station in Tucson, Arizona. On March
12, 1998, complainant submitted a written request to the regional human
resources office asking for an �emergency/medical hardship� transfer.
Specifically, complainant's young daughter required hospitalization as a
result of an acute medical condition.<1> During this time, complainant
was also in the last trimester of her second pregnancy. In requesting
a transfer to the northwest Phoenix area, complainant explained that
she had no family in the Tucson area and required a transfer to be near
family so that she could care for herself, her toddler and her impending
newborn. Her transfer request was not approved until November 1998.
Complainant sought EEO counseling and subsequently filed a formal
complaint on February 2, 1999, alleging that she was discriminated
against on the bases of race (Caucasian) and sex (female) when:
she was questioned about her use of sick leave under the Family
Medical Leave Act (FMLA) and having a low sick leave balance after two
pregnancies by a human resources official (RMO);
RMO threatened her with having to repay FMLA-leave that was previously
approved;
RMO required her to get duplicative medical documentation in an effort
to harass; and
she was told by RMO that no positions were available to her in the
facility she wanted to transfer to, despite information to the contrary
directly from the facility managers.
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. Prior to issuing the decision,
the AJ issued a Notice of Intent to Issue a Decision Without a Hearing.
In complainant's response to the notice, she redefined the issue as a
denial of a reassignment request.
The AJ concluded that complainant failed to establish that discrimination
based on her sex, race or disability occurred.<2> In so concluding,
the AJ found that the agency proffered legitimate, non-discriminatory
reasons for its actions which the complainant failed to rebut as being
pretextual. The AJ credited the statements of RMO when she explained
that the delay in processing complainant's transfer request was due to
her low sick leave balance and unreconciled medical records. The AJ
further held that complainant did not provide evidence that proved that
males or non-pregnant females were more favorably treated. Finally,
the AJ found that complainant failed to produce evidence demonstrating
that agency officials made derogatory remarks to her regarding either
of her pregnancies or otherwise harbored a discriminatory animus toward
pregnant women. The agency's final action implemented the AJ's decision.
On appeal, complainant contends that the AJ erroneously granted summary
judgement in the agency's favor. Complainant cites to what she believes
are numerous material facts in dispute. Further, the complainant argues
that the statements of RMO are unworthy of belief. 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).
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 affidavits. Specifically,
the AJ found the testimony of RMO regarding the reasons for the
delay in processing complainant's transfer request to be credible.
Complainant convincingly disputed this statement, arguing that when she
(complainant) spoke with RMO, RMO was very accusatory about her leave
usage in association with two uncomplicated pregnancies and that RMO
questioned whether complainant was genuinely recovering from childbirth or
simply babysitting. Further, complainant's supervisor made corroborating
statements about the general tenor of RMO's demeanor with regard to
complainant's request for a transfer.
Further issues require attention. As an example, RMO stated that the
reasons complainant's request was not quickly processed was because
1) there are no agency provisions for an emergency/medical transfer;
and 2) because complainant took more than six weeks of leave, as
allowed by agency regulations, for otherwise uncomplicated pregnancies.
Complainant aptly notes that, much as there is no policy on hardship
transfers in agency regulations, there is no regulations that limits
leave in association with pregnancy and childbirth to six weeks.
Complainant takes further issue with the comparison employees cited by the
agency. Specifically, the agency, in an effort to rebut the presumption
that it intentionally delayed complainant's transfer request because of
her leave usage associated with her pregnancies, argues that all transfer
requests are treated the same, in that those with a low sick leave balance
typically do not receive a favorable outcome. Complainant points out that
the comparison employees, however, did not have a low sick leave balance
because of pregnancy or childbirth. Thus, the material fact in dispute
is whether the agency penalized complainant, by viewing negatively her
sick leave balance which was low as a direct result of a pregnancy or
childbirth, in violation of the Pregnancy Discrimination Act of 1978.
Public Law 95-555, 92 STAT. 2076 (1978); 29 C.F.R. � 1604.10.
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, herself. Therefore,
judgment as a matter of law for the agency should not have been granted.
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 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 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
September 17, 2002
__________________
Date
1 Complainant's daughter, 18-months old at the time, was diagnosed with
a rare form of insulin-dependent juvenile diabetes.
2 We note that complainant never alleged that she was disabled or
otherwise claimed discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.