Julie D. Hoffman, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.

Equal Employment Opportunity CommissionSep 17, 2002
01A12964 (E.E.O.C. Sep. 17, 2002)

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.