01a41347
09-28-2005
Melissa L. Washington, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Melissa L. Washington v. United States Postal Service
01A41347
September 28, 2005
.
Melissa L. Washington,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41347
Agency No. 1B-065-0045-01
Hearing No. 160-A3-8373X
DECISION
INTRODUCTION
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. Sec. 2000e et seq., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. Sec. 791 et
seq. , and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. Sec. 621 et seq. The appeal is accepted pursuant
to 29 C.F.R. Sec. 1614.405. For the following reasons, the Commission
vacates the agency's final order and remands the complaint for a hearing.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Mail Handler at the agency's Southern Connecticut Processing and
Distribution Center in Wallingford, Connecticut. Complainant sought EEO
counseling and subsequently filed a formal complaint on April 23, 1997,
alleging that she was subjected to discriminatory harassment based on
her sex, disability, age and reprisal for prior EEO activity when:
(1) she was sent home to obtain medical documentation;
she was escorted off the premises by the local police after being denied
a Light Duty job;
her supervisor attempted to utilize her FMLA allocation for time she
was out for a fitness-for-duty clearance;
her requests for leave were not returned when she was inappropriately
denied leave to which she was entitled under the FMLA;
she was issued a Letter of Warning, charging her with violation of
agency standards of conduct; and
she was scheduled for a fitness-for-duty examination.
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). Before complainant conducted any discovery,
the agency filed a motion for a decision without a hearing. The AJ
granted the motion and issued a decision finding no discrimination.
The decision incorporated by reference the agency's brief in support
of its motion. The agency's final order implemented the AJ's decision.
From that order complainant brings the instant appeal.
LEGAL STANDARD
Harassment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
[and the Rehabilitation Act] must be determined by looking at all the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17
(1993).
Complainant alleges that she was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) s/he is a member of a
statutorily protected class; (2)s/he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. Sec.1604.11.
Disability Discrimination
In order to make out a prima facie case of discrimination on the basis
of disability, complainant must establish three elements: (1) he is an
"individual with a disability"; (2) he is "qualified" for the position
held or desired; and (3) he was subjected to an adverse employment action.
Regarding the first element of the prima facie case, the Commission's
regulations define an "individual with a disability" as one who: 1) has
a physical or mental impairment that substantially limits one or more of
that person's major life activities, 2) has a record of such impairment,
or 3) is regarded as having such an impairment. EEOC Regulation 29
C.F.R. Sec. 1630.2(g). "Major life activities"is defined as including
the functions of caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
EEOC Regulation 29 C.F.R. Sec. 1630.2(h)(2)(i).
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner, or duration under which an individual can perform
a major life activity. 29 C.F.R. Sec. 1630.2(j). The individual's
ability to perform a major life activity must be restricted as compared
to the ability of the average person in the general population to perform
the activity. Id.
Summary Judgment
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. Sec. 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.
The Commission has held that before an AJ can properly issue a decision
without a hearing in the federal sector, either on his or her own
initiative, or after a motion is made by either party, several criteria
must be satisfied:
(1) the AJ must be certain that the investigative record has been
adequately developed;
(2) the AJ must be certain that there are no genuine issues of material
fact;
(3) the AJ must not need to "make" any findings of fact by weighing
conflicting evidence or assessing witness credibility; and
(4) the AJ must ensure that the party opposing the summary judgment is
given:
(a) ample notice of the proposal to issue a decision without a hearing;
(b) a comprehensive statement of the allegedly undisputed material
facts;
(c) the opportunity to respond to such a statement; and
(d) the chance to engage in discovery before responding, if necessary.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003). In Petty, the Commission further found that the AJ must enable
the parties to engage in the amount of discovery necessary to properly
respond to any motion for a decision without a hearing, finding that
Rule 56 itself precludes summary judgment if the opposing party has
not been given the opportunity to discover information essential to the
opposition.
ANALYSIS AND FINDINGS
This complaint arose out of a series of incidents precipitated by
complainant's absence from work for medical reasons. Upon her return
to work, complainant's supervisor asked to supply medical documentation
concerning her absence. A dispute arose over complainant's obligation
to supply medical documentation. A supervisor instructed complainant to
leave the facility. When she did not immediately comply a supervisor
threatened to call the police to remove her. Complainant eventually
left the facility.
Over the ensuing months there were a series of confrontations between
complainant and various supervisors over the proper processing of medical
and leave documentation. One such confrontation occurred on August 8,
2000, during which complainant raised her voice and used a profanity.
As a result of that incident, complaint received a letter of warning.
In addition, according to complainant, as a result of the August 8,
2000 incident, complainant was instructed to undergo a fitness-for-duty
examination. Complainant's central contention seems to be that this
series of events constructed a pattern of harassment directed against her
because she is disabled or regarded as disabled. She has been diagnosed
with fibromyalgia and cervical/lumbar spondylosis.
In support of its summary judgment motion, the agency submitted a detailed
brief which includes a lengthy recitation of �undisputed material facts.�
In opposition to the motion, complainant submitted a brief including
a listing of �material facts in dispute.� In granting the motion, the
AJ adopted the agency's brief, in whole, stating that it �properly sets
forth the facts and applicable law.� There is very little discussion
of complainant's arguments or her listing of material facts in dispute
in the AJ's decision. It summarily concludes that complainant is not
entitled to the protections of the Rehabilitation Act because she is
not disabled or regarded as disabled.
Our review of the record indicates that the AJ erred in granting summary
judgment without affording complainant the opportunity to conduct
discovery. The need for discovery was particularly great concerning
the issue of whether the agency regarded complainant as disabled.
As complainant points out in her brief in opposition to the motion,
complainant was repeatedly examined by physicians of the agency's
choosing, but the results of those examinations are not included
in the report of investigation. Complainant is entitled to have the
agency produce any relevant documents that might exist and to conduct
depositions of agency employees who might shed light on how the agency
regarded complainant's medical condition. Only after all relevant
evidence is in the parties' hands will it be possible to determine
whether any issues of material fact exist.
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 New York 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 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. Sec. 1614.109 and the agency
shall issue a final action in accordance with 29 C.F.R. Sec. 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. Sec. 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. Secs. 1614.407, 1614.408, and 29 C.F.R. Sec. 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. Secs. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 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 28, 2005
__________________
Date