01A15133
04-24-2002
Mario C. Morales, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Mario C. Morales v. Department of the Navy
01A15133
April 24, 2002
.
Mario C. Morales,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A15133
Agency No. 99-00216-010
Hearing No. 360-A0-8368x
DECISION
INTRODUCTION
This case was brought by Mario C. Morales (�complainant�) against his
employer, the Department of the Navy (�the agency�). Complainant filed
a formal complaint alleging that the agency discriminated against him
on the basis of his alleged disability (�perceived alcoholism�) when (1)
his immediate supervisor (�Supervisor�) issued him a letter of reprimand
for coming to work under the influence of alcohol; and (2) Supervisor
subsequently harassed him by publicly checking his breath for the smell
of alcohol each morning for over a month. Complainant is thus alleging
that the agency violated Section 501 of the Rehabilitation Act of 1973
(�the Rehabilitation Act�), as amended, 29 U.S.C. � 791 et seq.<1>
The agency issued an investigative report on these allegations on or
around January 27, 2000. After receiving this report, complainant
requested a hearing before an administrative judge (�the AJ�) from
the United States Equal Employment Opportunity Commission (�EEOC� or
�the Commission�). However, after reviewing the relevant record, the
AJ issued a decision on this matter without first holding a hearing.
This AJ ruling, released on June 28, 2001, found that the agency
had not discriminated against complainant as he claimed. The agency
adopted this summary judgment decision in full in a final agency order
(�FAO�) issued on July 27, 2001. Complainant then filed a timely notice
challenging this FAO, which we accepted and docketed as this appeal.
While complainant did not submit any statement supporting his appeal,
the agency did submit one opposing it (and arguing that there was no
basis to disturb the FAO in question and/or that the appeal was now moot
because the letter of reprimand had been removed from complainant's file).
We accepted complainant's appeal, and are now issuing this decision,
pursuant to 29 C.F.R. � 1614.405(a). We are charged with reviewing the
AJ's decision to grant summary judgment in favor of the agency (and the
FAO implementing it) de novo (or �anew�). See EEO Management Directive
for C.F.R. 29 Part 1614 (rev. Nov. 9, 1999) (�EEO MD-110�), at 9-16.
This essentially means that we look at the case with fresh eyes. We are
free to accept or reject at will the AJ's (and agency's) legal and factual
conclusions � including conclusions on the ultimate fact of whether
intentional disability-based disparate treatment or harassment occurred.
That said, the task before us is really to determine whether the
AJ's decision to rule in favor of the agency without first holding a
hearing was proper. 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 Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); see also 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.
After analyzing all the evidence in this record and considering the
merits of this complaint, we believe that there were no material facts
(i.e., facts that would affect the outcome of the case under governing
law) in genuine dispute here with respect to the issuance of the letter
of reprimand. Supervisor smelled alcohol on complainant's breath one day
in April of 1999, and an agency doctor confirmed that complainant had in
fact been drinking that day. Complainant does not dispute these events.
Given that these facts are thus uncontested, the particular issue of
whether complainant was treated disparately (by the issuance of the
letter of reprimand) was ripe for summary judgment. If we view all the
record evidence in the light most favorable to complainant (as we must
to affirm an AJ's summary judgment in favor of the agency), we could
not conclude that complainant has proffered evidence sufficient to
establish (as he must) that the issuance of this letter of reprimand
violated the Rehabilitation Act. Even if we assume that complainant
was a �qualified individual with a disability,� Supervisor would not
have violated the Rehabilitation Act by reprimanding complainant for
being under the influence of alcohol while at work. See 29 C.F.R. �
1630.16(b) (explicitly providing that agencies may, without violating the
Rehabilitation Act, require that employees not be under the influence
of alcohol at the workplace, and hold an employee who is an alcoholic
to the same qualification standards for employment or job performance
and behavior to which the entity holds its other employees � even if
any unsatisfactory performance or behavior is related to the employee's
alcoholism). There is no showing here that similar situated persons
were treated more favorably than complainant.
However, we believe the AJ did err in issuing summary judgment on the
question of whether Supervisor's allegedly incessant breath-checking
constituted disability-based harassment. The courts have recognized
that harassment based on one's disability can indeed violate the
Rehabilitation Act. See, e.g., Flowers v. Southern Regional Physician
Services, Inc., 247 F.3d 229, 232 (5th Cir. 2001) (explicitly ruling
that �the ADA embraces claims of disability-based harassment�); and
Fox v. General Motors, 247 F.3d 169, 176 (4th Cir. 2001) (noting that
�we have little difficulty in concluding that the ADA . . . creates a
cause of action for hostile work environment harassment�). Similarly,
this Commission has held that supervisory actions taken in front of
co-workers that publicly demean a complainant's disabling condition can
rise to the level of unlawful harassment. See, e.g., Marker v. United
States Postal Service, EEOC Appeal No. 01992706 (Feb. 21, 2002) (holding
an agency liable for a supervisor's public ridicule of an employee's
hearing loss); and Wibstad v. United States Postal Service, EEOC Appeal
No. 01972699 (Aug. 14, 1998) (finding that an agency official committed
disability-based harassment against a known alcoholic).
Here, complainant denies being an active alcoholic, but claims that he
is a recovered alcoholic who has a record of treatment for alcoholism.
He claims that Supervisor humiliated him by subjecting him � and him
alone � to daily public breath inspections for well over a month (in
front of co-workers and even though Supervisor had no concrete cause to
suspect complainant had been drinking). At least one co-worker provided
an affidavit confirming this supervisory practice. Supervisor, however,
flatly denies ever checking complainant's breath for alcohol in this
manner. There is thus a material question of fact as to what sort of
harassment-like conduct may have been inflicted upon complainant and/or
how severe or pervasive such supervisory behavior may have been. These
questions � and the ultimate issue of whether this alleged supervisory
conduct was based on complainant's record of a disability (assuming,
as we must, that complainant has such a record) � can only properly be
answered by having a hearing and then weighing the credibility of the
various parties.
As we have noted many times in the past, a hearing is intended to be
an extension of the investigative process itself, and is 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.� EEO MD-110, at 7-1. �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 [his] claims.� Erickson v. United States Postal
Service, EEOC Appeal No. 01A1149 (Oct. 31, 2001); Valdez v. United States
Postal Service, EEOC Appeal No. 01A11835 (Oct. 26, 2001); and Trimble
v. United States Postal Service, EEOC Appeal No. 01A01124 (Aug. 22, 2001).
That is exactly what happened here. For this reason, summary judgment
on complainant's claim of disability-based harassment was improper.
CONCLUSION
Accordingly, the AJ's decision and FAO are affirmed insofar as these
rulings found no disability-based disparate treatment. However, the
AJ's opinion and FAO are vacated to the extent they determined that
no disability-based harassment occurred. This case is thus remanded
to the appropriate hearings unit for a hearing on this latter issue,
consistent with the ORDER below.<2>
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 AJ (or whichever administrative
judge is appointed to conduct the hearing) shall hold a hearing on the
issue of whether the agency committed disability-based harassment in
violation of the Rehabilitation Act, and shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109. The agency shall
then 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 complainant. If the
agency does not comply with the Commission's order, complainant may
petition the Commission for enforcement of the order. See 29 C.F.R. �
1614.503(a). 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, 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.� See
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). If 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 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 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; EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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 complainant's complaint. However, if complainant wishes
to file a civil action, complainant has the right to file such action
in an appropriate United States District Court within ninety (90)
calendar days from the date that complainant receives this decision.
In the alternative, complainant may file a civil action after one
hundred and eighty (180) calendar days of the date complainant filed
complainant's complaint with the agency, or filed complainant's appeal
with the Commission. If complainant files a civil action, complainant
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 complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility
or department in which complainant works. Filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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 complainant's 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 entitled
�Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 24, 2002
__________________
Date
1The Rehabilitation Act of 1973 was amended in 1992 to apply the standards
in the Americans with Disabilities Act (�the ADA�) to complaints of
discrimination by federal employees or applicants for employment.
2Because we affirm the FAO in question on the issue of whether the
issuance of the letter of reprimand was disability-based disparate
treatment, we need not analyze the agency's alternative appeal arguments.