0120092978
01-15-2010
Wendy L. Alexander, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wendy L. Alexander,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092978
Agency No. 4J-481-0097-07
Hearing No. 471-2008-00119X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 4, 2009 final action concerning an equal
employment opportunity (EEO) complaint claiming 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.
ISSUE PRESENTED
The issue presented by this appeal is whether the instant EEO complaint
was appropriately adjudicated by summary judgment in favor of the agency.
BACKGROUND
During the period at issue, complainant was employed as a Carrier, Q-01,
at the agency's Wayne Post Office in Wayne, Michigan.
On September 7, 2007, complainant filed a formal EEO complaint. Therein,
complainant claimed that the agency discriminated against her on the
bases of race (African-American) and sex (female) when, on June 1, 2007,
she was issued a No-Time Off Suspension for seven days for driving while
not wearing a seatbelt.1
Complainant asserted that two identified employees (an African-American
male and a Caucasian female) were treated more favorably than she had
been treated. Specifically, complainant stated that, on September 21,
2006, the male identified employee (E1) drove a postal vehicle with
the door open, but was not issued any discipline and was simply told
to make sure he wears his seatbelt and to keep the door closed while
driving. Complainant also stated that sometime in 2006 or in the beginning
of 2007, the female identified employee (E2) drove a vehicle with the
door open while not wearing a seatbelt, but was not issued any discipline
and was allowed to go to driver's training. Complainant stated that at
the time E1 and E2 violated the safety rules, they were supervised by
the same supervisor as complainant.
Complainant further alleged that the Officer-in-Charge (OIC) and
Supervisor Customer Services (SCS) were untruthful when they stated
they had observed her without her seatbelt as their version of the
facts could not be proved. Finally, complainant stated that despite
the inconsistency of the observation report, her immediate supervisor
(S1) decided to discipline her anyway.
Following the investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ). The agency filed a Motion for a
Decision without a Hearing on November 21, 2008. Complainant filed a
Response to the Agency's Motion for Summary Judgment on December 8, 2008.
The AJ issued a decision without a hearing on May 26, 2009, in favor of
the agency.
In her decision, the AJ adopted and incorporated the agency's statement
of the material facts as set forth in the agency's Motion for Summary
Judgment. The AJ determined that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the AJ noted
that the agency issued complainant the Seven-Day No Time Off suspension
in order to correct her failure to follow agency policy and Michigan state
law which requires drivers to wear seat belts when the vehicle is moving.
The AJ noted that evidence in the record indicated E1 and E2 are not
similarly situated to complainant because two different supervisors took
the actions regarding discipline even though the Station Manager was the
same second-line manager. The AJ further found that even if complainant
could establish a prima facie case of race and sex discrimination,
the agency articulated legitimate, nondiscriminatory reasons which
complainant failed to show were a pretext.
With respect to complainant's argument that there was an issue of
credibility and that a hearing was required, the AJ determined that
complainant's assertions were erroneous and did not show that there is
a genuine question of credibility as to whether she was discriminated
against because of her race or sex. The AJ determined that the issue
presented is not whether complainant committed the offense or not.
The AJ further determined that complainant did not offer any evidence
to show that OIC and SCS "lied" about their observations because of her
race or sex.
On June 4, 2009, the agency issued its final action implementing the
AJ's decision. The instant appeal followed.
On appeal, complainant, through her representative, argues that the AJ
improperly granted summary judgment in favor of the agency because there
remain genuine issues of material fact that can only be resolved through
a hearing. Complainant argues, for example, that the agency claimed
that E1 was not disciplined because the discipline was not prepared
in a timely manner. Complainant further argues that the AJ improperly
accepted the agency's reason for not disciplining E1 "as legitimate even
though there is no evidence that there was anything preventing the agency
from issuing discipline." Complainant argues that in regard to E2, the
AJ noted "that a result of her being observed by the Postal Inspectors
with her door open and not wearing her seat belt '[named supervisor]
held a service talk with the carriers about the policy of wearing the
seat belt while driving and not to drive with the door open.'"
Complainant states that the AJ improperly determined that E1 and E2 had
different supervisors at the time of their infractions. Complainant
argues that while E1 and E2's infractions were committed under different
supervisors, the actions of E1 and E2 occurred under the same Station
Manager. Complainant argues that the AJ's "narrowest interpretation of
the 'similarly situated' requirements is functionally flawed. Complainant
argues that regardless of the supervision under the Station Manager's
direction "all the same rules, regulations, and policies applied to all
Letter Carriers which she managed at the Wayne Post Office."
Further, complainant argues that even though the Station Manager
(SM) denied knowledge of E2's infraction it was unlikely that a named
Supervisor would not have consulted with her as his manager regarding
what action to take. Complainant argues that there was no dispute that
SM was involved in the decision-making process as it related to [E1],
and that she was the concurring official in Complainant's Seven-Day
No-Time Off Suspension. Complainant argues that the AJ's attempt "to
disassociate the first-level Manager with the actions of her immediate
subordinate supervisors when making a comparator-employee analysis,
if allowed to stand, would be an invitation for the agency to avoid any
liability to first level and higher management by insulating them from
responsibility in the decisions of their subordinate supervisors."
Finally, complainant argues that there are inconsistencies concerning
the OIC's statement that he observed her fastening her seatbelt as she
was turning right at an intersection identified as "Maxine and Ellen."
Complainant states, however, the Maxine and Ellen intersection "is a
parking lot within an apartment complex and that neither a right hand turn
or left hand turn can be made." Complainant argues that in her rebuttal
to the contentions that the agency's version of the facts could not
have occurred "due to the physical aspects of the area where the alleged
infraction occurred, the AJ noted that, 'even though there clearly are
mistakes in the notice of suspension as to the direction of the turns,
there is no showing that this is any more than a clerical mistake.'"
Complainant argues that it was an outrageous assertion made by the AJ
because "the agency never claimed that they made a clerical error in
the supposed factual description of the incident. The AJ is inserting
her own excuse for the agency's inconsistency which the Complainant has
only now learned, for which no discovery time was provided to investigate
[emphasis in the original]."
ANALYSIS AND FINDINGS
As this is an appeal from an agency's decision issued without a
hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is
subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
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. 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 does not sit as a
fact finder. Id. 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. A disputed 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. Catreet, 477 U.S. 317,
322-323 (1986); Oliver v. Digital Equipment Corporation, 846 F.2d 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential
to affect the outcome of a case. If a case can only be resolved by
weighing conflicting evidence, a hearing is required. 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. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmond 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). "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). 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, November 9, 1999, Chapter 6, page 6-1; see also 29 C.F.R. �
1614.109(d) and (e).
After careful review of the record and consideration of the arguments
presented on appeal, the Commission finds that summary judgment was not
appropriate in this case as genuine issues of material fact exist that
can only be resolved through a hearing. There are significant unresolved
issues surrounding the nexus between complainant's race and sex and
the alleged discriminatory events. Agency management states that E1
and E2 are not similarly situated to complainant because they were not
supervised by the same supervisor as complainant. However, complainant
argues that SM was involved in the decision-making process concerning E1,
E2 and complainant's infractions. It appears that this debate can only
be resolved through credibility determinations made during a hearing.
We note in her affidavit, SM stated that she was the reviewing official
concerning complainant's Seven-Day No Time Off Suspension. SM stated
that in regard to E2, she was not aware of her driving with her door
open and seatbelt off or attending driver's training. SM stated that
in regard to E1, he did not receive a disciplinary action because the
discipline was not prepared in order to be issued in an effective manner
to support management's position. If, in fact, E1 and E2 are proven to
be similarly situated comparators, the reason for their more favorable
treatment needs to be resolved as all three employees were under identical
driver safety rules and laws.
There also exists considerable dispute over the OIC and SCS's observations
of complainant driving without her seatbelt on. We note in complainant's
Seven-Day No-Time Off Suspension notice, S1 notified complainant that
OIC and SCS observed her making a right turn at the corner of Maxine
and Ellen. Complainant, on appeal, argues that the Maxine and Ellen
intersection is a parking lot within an apartment complex and that neither
a right turn nor left turn can be made. In support of her assertions,
complainant submitted a copy of a map indicating neither a right nor
left turn is possible at the Maxine and Ellen intersection.
Therefore, we conclude that the AJ's finding of no discrimination could
not be reached except by resolving significant conflicting evidence,
an action that is not appropriate in a grant of summary judgment.
In light of the disputed issues of material fact on the instant record,
issuance of a decision without a hearing was not warranted under 29
C.F.R. � 1614.109(g).
The Commission VACATES the agency's final action and REMANDS the matter
to the agency for further processing in accordance with the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC's Detroit Field
Office the request for a hearing, as well as the complaint file, within
thirty (30) 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 of the Detroit Field Office.
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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 15, 2010
__________________
Date
1 The record reflects that complainant filed a grievance concerning
her Seven-Day No-Time Off Suspension. On June 22, 2007, complainant's
grievance was settled and, as a result, the Seven-Day No-Time Off
Suspension was expunged from complainant's file. We note that the record
reflects that complainant also requested compensatory damages as relief
in this case.
??
??
??
??
2
0120092978
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092978
8
0120092978