01a34839
09-29-2005
Ying G. Chen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ying G. Chen v. United States Postal Service
01A34839
September 29, 2005
Ying G. Chen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34839
Agency No. 1A-101-0023-01
Hearing No. 160-A3-8047X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
timely appeal from the agency's final order in the above-entitled matter.
The record reveals that during the relevant time, the complainant was
a Casual Clerk and Mail Handler at the agency's Morgan Processing and
Distribution Center in New York, New York. For the following reasons,
the Commission affirms in part, and vacates and remands in part, the
agency's final action.
BACKGROUND
The complainant filed a formal complaint, alleging employment
discrimination under Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. � 2000e et seq. Specifically, she alleged that
the agency had discriminated against her on the bases of race (Asian),
national origin (Chinese), sex (female), color (yellow), and reprisal
for prior EEO activity when:
(1) the complainant was asked questions to evaluate her English language
competency during the complainant's pre-employment screening two years
earlier than her complaint filing, in 1999;
on May 29, 2001, she was �instructed� by the agency's Personnel Office
to take an English language course as a �condition of [her] career
appointment;�
she was continuously denied a career appointment as a Level 5 clerk,
with the most recent incident occurring on September 30, 2001, due to
her purported lack of proficiency in the English language; and
when she was terminated, effective October 5, 2001, for attendance
issues.
As background, the record shows that in 1999, the complainant, who had
emigrated from China in 1996, applied to become a full-time, permanent
employee with the agency. She took and passed the Postal examination, and
while waiting for employment in a permanent position, informed the agency
that she was available for temporary employment as a Casual employee.
In March 1999, she was required to take an English literacy test as part
of her pre-employment screening. She said she was never informed of the
results of this testing and was never told she had language deficiencies
which needed to be corrected. In China, complainant stated she attended
two years of college and was an English major.
On October 21, 2000, the complainant was given a pre-employment interview
for a non-career Casual position. The interviewer noted on the interview
form that the �applicant demonstrates proficiency to the job. A little
slow with [E]nglish perception but understands.� The agency hired the
complainant as a Casual Mail Processor on December 7, 2000. The agency
reappointed the complainant to a series of other non-career positions,
including as a Casual clerk and mail handler.
The complainant stated in her EEO investigative affidavit that on May 29,
2001, she was �instructed� by the agency's Personnel Office to take an
English language course as a �condition of [her] career appointment.�
The complainant's initial contact with the EEO office was on June 8,
2001, after the complainant was made aware by a union representative
that the agency's refusal to offer her a permanent career appointment
without taking the English language course might be discriminatory.
Complainant did not take the language course and was appointed for another
term as a Casual clerk/mailhandler on June 30, 2001. She asserts that
she should not have been required to take the course because her English
was adequate as evidenced by the agency's willingness to reappoint her to
Casual positions five separate times. She states that she performed the
full range of duties of a career clerk and mail handler, was supervised
in English, interacted with coworkers in English, and read and wrote in
English as required by her work on a daily basis without ever being told
that her work or language skills were deficient. She also claims the
agency should have informed her of any concerns it had with her language
ability in 1999 when she was required to take a pre-employment English
literacy test, rather than waiting for two years and then denying her
a permanent position based on her purported language deficiencies.
The record shows that from September 7 through September 17, 2001, the
complainant failed to report to work as scheduled, and did not report her
absences after September 9, 2001. The complainant also failed to report
to work on September 28, and on September 30. On September 28, 2001,
she was reappointed to another term as a Casual employee. On September
30, the agency issued the complainant a Notice of Termination, effective
October 5, 2001. Complainant asserts she also received another denial of
appointment to a permanent position on September 30, 2001. Complainant
claims these actions were in retaliation for seeking EEO counseling in
June 2001 concerning the agency's continuing failure to appoint her to
a permanent position� counseling which was continuing at the time she
received the termination notice. She states that her supervisors were
aware of this protected activity, and the EEO Counselor's Report confirms
this claim. Complainant asserts her absences were due to illnesses of
her children and should have been excused under the Family and Medical
Leave Act (FMLA).
Thereafter, the complainant filed her formal EEO complaint alleging she
had been discriminated against on the bases of race (Asian), national
origin (Chinese), sex (female), color (yellow), and reprisal for prior
EEO activity in the matters at issue. Following an investigation, the
complainant requested a hearing. Complainant designated a union official
as her representative for the hearing process.
On November 12, 2002, the EEOC Administrative Judge (AJ) ordered the
parties into mandatory mediation. The parties agreed to suspend discovery
pending the outcome of the mediation. On March 21, 2003, before the
mediation had occurred, the agency submitted a Motion for Decision Without
a Hearing. In its motion, the agency requested that the mediation be held
in abeyance and that a stay of discovery and other pre-hearing submissions
be granted pending the ruling on the motion. By decision dated June 12,
2003, after neither complainant nor her representative responded to the
agency's motion, the Administrative Judge dismissed the first allegation
in the complaint (that complainant was given a pre-screening literacy
test in 1999) as time-barred, and entered summary judgment in favor of
the agency on the remaining three issues. The AJ's decision is brief
and incorporates the agency's motion by reference. The agency's final
action fully implemented the AJ's decision, and complainant filed the
instant appeal.
ANALYSIS AND FINDINGS
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). 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.
If a case can only be resolved by weighing conflicting evidence,
summary judgment is not appropriate. The burden is on the moving party to
establish their entitlement to judgment as a matter of law. 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. Therefore, in the context of an administrative hearing,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
On appeal, the complainant argues that there are issues of material
fact which must be determined at a hearing relevant to whether the
agency unlawfully failed to appoint her to a permanent position and
whether her termination was the result of unlawful discrimination or
retaliation for engaging in EEO. She contends that the AJ erred in
entering summary judgment because she was not permitted to engage in
discovery which would have permitted her to effectively challenge the
agency's motion for summary judgment. She further asserts that she had
depended upon her representative to submit a response to the agency's
motion for summary judgment, and he, unknown to her, was unable to do
so due to an incapacitating illness.
Illness of Representative
On appeal, the complainant states that her failure to oppose the agency's
motion was due to the illness of her representative. By affidavit
submitted on appeal, complainant asserts that although she was receiving
documents through the mail from the AJ and the agency regarding her case,
she assumed that her designated representative was filing all appropriate
responses and would let her know of any actions she needed to take.
She states that her arrangement with her representative was that he
would assume sole responsibility for the preparation and filing of all
submissions to the AJ and agency due to her �total lack of knowledge of
EEOC regulations, procedures and terminology.�
The record on appeal establishes that the complainant's representative was
hospitalized from February 3, 2003 through the end of May 2003, due to
a serious and incapacitating illness, which resulted in four operations
culminating in a leg amputation. On appeal, the representative stated
that during the period of his convalescence, he was unable to perform any
of his functions as an �appeal advocate�, including his representative
duties, and was unable to read any mail sent to him, including mail
relating to this case, until June 10, 2003, long past the time for
submitting a response to the agency's motion for summary judgment.
He also stated that all mail related to any appeals in which he was
the representative was allowed to accumulate, unopened, in his home.
The representative confirmed that he did not inform those individuals
that he was representing, including complainant, of his situation and
the need to seek extensions or to find a new representative. As a
result, neither the representative nor the complainant informed the
AJ or the agency of his incapacity during this time, and did not seek
an extension of time to respond to the agency's motion for summary
judgment. As a result, the AJ acted on the agency's motion for summary
judgment without a response from complainant or any knowledge of the
situation which prevented a response from being submitted.
In most circumstances, it is complainant's responsibility for proceeding
with her complaint, whether or not she has designated a representative. 29
C.F.R. � 1614.605(e). However, given the unusual circumstances in this
case, we find adequate justification for complainant's failure to act on
her own behalf due to her reliance on her representative and her total
lack of knowledge about the incapacitating illness which prevented him
from acting on her behalf. We do caution complainant, however, that
in all future processing of her complaint she needs to be a much more
active participant in prosecuting her cause.
Therefore, we begin our analysis by recognizing that the record before us
is not the same record that was presented to the AJ. The AJ issued the
decision granting the agency's motion for summary judgment without the
benefit of a response from complainant articulating reasons why summary
judgment was improper in this case. Our review has the benefit of a
more complete record. Unlike the AJ, we now know that the complainant
was relying on her representative, who was unable to file the response.
We know the circumstances of the representative's incapacity and find
adequate justification for now considering the arguments submitted on
appeal despite the fact that they were not raised with the AJ.
Dismissal of Issue One � Concerning 1999 Pre-Employment Screening
We find that the Administrative Judge's determination, as to timeliness
of the first allegation pertinent to matters occurring in 1999, is
supported by this record. To support our conclusion, we note that the
complainant's initial EEO counselor contact was June 8, 2001, which was
more than 45 days after the pre-screening incident in question in which
the complainant was tested on her English language skills. However,
because of its relevance to the other issues raised in the complaint,
the facts surrounding this issue may be used as evidence in support of
complainant's claim that she was not hired into a permanent position
because of discrimination against her as a native Chinese speaker.
Summary Judgment�Genuine Issues of Material Fact
As noted before, the Commission's regulations allow an AJ to issue a
decision without a hearing only when he or she finds that there is no
genuine issue of material fact. 29 C.F.R. � 1614.109(g). 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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
After careful review of the entire record and the documents submitted
on appeal by both parties, we reverse the summary judgment decision
because we conclude that there are genuine issues of material fact that
must be resolved through a hearing which were created by an inadequate
investigative record and the fact that complainant was denied an
opportunity to conduct discovery prior to the ruling on the agency's
motion for summary judgement.<1>
The agency's investigation in this case was woefully inadequate and,
by itself, suggests that summary judgment was not appropriate in this
case. The agency completely failed to investigate Complainant's claim
of discrimination when she was allegedly continuously denied a career
appointment, most recently on September 30, 2001, because of purported
English language deficiencies. The record does contain an affidavit
from complainant in which she asserts that other similarly situated
Casual employees were hired into permanent positions during the period
in question, and that she was told she was not converted to a permanent
employee because of purported deficiencies in her English language
skills which required her to take a language course. Complainant,
in her affidavit, disputes any language deficiencies, stating that she
performed the full range of duties of a career clerk/mail handler during
her five appointments as a Casual, was supervised in English, interacted
with coworkers in English, and read and wrote in English as required by
her work on a daily basis without ever being told her work or language
skills were deficient. As the non-moving party in the summary judgment
stage, complainant's assertions in her affidavit should be treated as
true, and are in conflict with the agency's very general denial of any
discriminatory motivation. This creates genuine issues of material fact
surrounding why complainant was denied a career appointment.
With regard to complainant's claim of retaliation for engaging in EEO
activity when she was terminated from her Casual position in October 2001,
the investigative file is also totally inadequate. In her affidavit,
complainant claims the termination was issued in retaliation for ongoing
EEO counseling she was receiving concerning the agency's continuing
failure to appoint her to a permanent position. She states that her
supervisors were aware of this protected activity, and the EEO Counselor's
Report confirms this claim. Complainant asserts her absences did not
justify her termination as they were due to illnesses of her children and
should have been excused under the Family and Medical Leave Act (FMLA).
Complainant also asserts that she believes that other similarly situated
employees with similar attendance records were not terminated.
The investigative record contains no affidavit from complainant's
former supervisor, who was the person allegedly responsible for
her termination. The record indicates that the supervisor is no
longer employed by the agency, and contains a brief statement by the
former Supervisor's Manager which is a general denial of retaliatory
animus. There is no information about any comparative employees. Based on
these limited documents, there is a clear dispute of material fact as to
whether retaliatory animus was the true reason for the agency's decision
to terminate complainant's employment rather than the complainant's
leave record.
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, in
appropriate instances, to examine and cross-examine witnesses." See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 7-1 (November 9, 1999); 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 25, 1995).
Based on the significant deficiencies in the investigative record,
which go to the heart of complainant's allegations of discrimination,
adequate justification exists for reversing the summary judgment in this
matter and returning the case for a hearing.
CONCLUSION
Therefore, after a careful review of the record, including the parties'
arguments on appeal, the Commission modifies the agency's decision.
We affirm the dismissal of claim 1, and vacate the agency's final action
as to claims 2, 3 and 4, and remand those three claims to the agency in
accordance with this decision and 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 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 29, 2005
__________________
Date
1 In its motion, which the AJ granted, the agency requested a stay of
discovery and other pre-hearing submissions be granted pending the ruling
on the motion. Discovery had been suspended prior to the motion pending
the outcome of mandatory mediation ordered by the AJ.
2 On remand, claims 2 and 3 should be joined together as what has been
characterized by the agency as �claim� 2 is actually evidence proffered
by complainant in support of her claim that she was discriminatorily
denied a career appointment because of purported language deficiencies.