01A05832
06-18-2002
Miguel Torres, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Miguel Torres v. United States Postal Service
01A05832
June 18, 2002
.
Miguel Torres,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05832
Agency Nos. 4F-950-1281-96
4F-950-0020-97
4F-950-0208-99
Hearing Nos. 370-98-2061X
370-98-2062X
370-00-2071X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning his complaints 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
The record reveals that during the relevant time, complainant was
employed as a Letter Carrier at the agency's Fresno Post Office in
Fresno, California. Complainant sought EEO counseling and subsequently
filed three formal complaints on October 22, 1996, December 9, 1996, and
October 22, 1998, alleging that he was discriminated against on the bases
of race (Caucasian), national origin (Hispanic), sex (Male), religion
(Catholic), color (Brown), disability (Diabetes, knee and wrist), age
(born in 1953), and reprisal (prior EEO activity) when:
On August 6, 1996, his supervisor refused to give his paycheck to
another person;
On August 23, 1996, he was advised to contact the injury compensation
unit to obtain a claim form;
On September 3, 1996, he was denied time on-the-clock to seek EEO
counseling;
On September 3, 1996, inconvenienced by having to return to his
union hall because his EEO representative was denied sufficient time
on-the-clock to assist him;
On September 6, 1996, his manager delayed tendering him his paycheck;
On July 25, 1996, his supervisor made negative comments about him to
a customer;
The agency submitted false information about him resulting in the denial
of his unemployment benefits claim on September 24, 1996;
On August 22, 1996, he was issued a letter of removal for inappropriate
conduct in encouraging a work slowdown; expanding street time without
authority; and delaying first class mail; and
The manager refused to accept his estimate of time in connection with
his request for auxiliary assistance and also refused to return the
form pursuant to his request.
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.
The AJ assumed that complainant established his prima facie cases of
race, sex, national origin, color, religion, age, disability and reprisal
discrimination. The AJ found that complainant failed to show that the
alleged incidents were severe enough to constitute a claim of harassment.
Further, the AJ found that the incidents raised were a string of isolated
administrative incidents which complainant failed to establish occurred
because of his protected status. The AJ then concluded that the agency
proffered legitimate, nondiscriminatory reasons for four of the nine
alleged incidents.
The agency's final action implemented the AJ's decision. On appeal,
complainant contends that the AJ erred in fragmenting his claim of
harassment and did not consider the totality of the circumstances in
issuing his decision. 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.
After a careful review of the record, we find that the AJ erred
when he concluded that the record had been adequately developed
for summary disposition. A review of the record reveals that the
agency's investigation was clearly inadequate. In particular, of the
nine incidents raised in complainant's three formal complaints, agency
officials only provided evidence responding solely to four of the claims.
The agency did not address the reasons for its actions in claims (1), (4),
(6), (7), and (9). Finally, as to claim (2), the agency merely indicated
that complainant was directed to contact the injury compensation office
in order to obtain a claim form however it did not explain why, once
complainant made his request to the appropriate person, there was a delay
in receiving the form. Upon review, we conclude that, due to the agency's
inadequate investigation which failed to provide explanations for its
actions, complainant was denied a fair opportunity to demonstrate pretext.
Further, we find that there is a material fact in dispute as to the
removal action in claim (8). The AJ relied on the notice of removal
and an agency official's statement that the removal action was for cause
to determine that the agency did not discriminate against complainant.
Complainant indicated that the agency's removal action was based on "lies"
by agency officials and he denied that he engaged in the inappropriate
conduct. The report of investigation contains a copy of a decision from
an Administrative Law Judge of the California Unemployment Insurance
Appeals Board finding that complainant did not engage in the inappropriate
conduct alleged by the agency in the notice of removal. Therefore, we
find that the AJ erred in giving credence to the agency's explanation
for the notice of removal in light of complainant's conflicting affidavit.
Finally, we find that the AJ improperly fragmented complainant's
claim of harassment. See Meaney v. Department of the Treasury, EEOC
Request No. 05940169 (Nov. 3, 1994). The AJ's decision considered the
non-removal actions as harassment and the removal actions under a claim
of disparate treatment. Complainant indicated that all the alleged
incidents constituted his claim of harassment. We find that, once the
record is fully developed, the AJ may then render a determination as to
whether the agency subjected complainant to harassment as he alleged.
We note that the hearing process is intended to be an extension of the
investigative process, designed to �provide the parties with 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(d) and (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 further investigation Therefore,
judgment as a matter of law for the agency should not have been granted.
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 San Francisco
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. � 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
June 18, 2002
__________________
Date