0120100484
05-07-2013
Charles R. Turner, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Charles R. Turner,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120100484
Hearing No. 480-2008-00115X
Agency No. 4E-890-0111-07
DECISION
Complainant filed an appeal from the Agency's October 9, 2009 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely and is accepted for de novo review, pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final order and REMANDS this matter back for an administrative hearing.
ISSUE PRESENTED
Whether the EEOC Administrative Judge's (AJ) issuance of a decision without a hearing was appropriate.
BACKGROUND
The AJ found that the record contains the following undisputed facts: Complainant has knee and back impairments that prevented him from performing the essential functions of his Carrier position. Therefore, he performed a modified duty assignment, in the Time Unit, as a Mail Processing Clerk at the Agency's James Brown Post Office (GMF) in Las Vegas, Nevada. In July 2007, Complainant presented medical documentation indicating that he could now case and carry mail. In response, the Officer-in-Charge (OIC) of the North Las Vegas Station, A-1, contacted the Union and indicated that Complainant would be sent to the Meadow Mesa Station to perform carrier duties within his medical restrictions while a new job offer was created for him.
While Complainant was at the Meadow Mesa Station, he informed A-2, Customer Services Manager, he was still medically unable to return to his carrier duties. Based on Complainant's assertions, A-1 returned him to his prior modified duty position in the Time Unit at the GMF which was within his current medical restrictions and did not require him to perform any Carrier duties. Complainant, however, attributed his return to the GMF to a conversation that he had with D-1, an EEO counselor. D-1, according to Complainant, asked him if was going to continue proceeding with an EEO complaint that he had filed. Complainant answered that he would continue with his EEO complaint. Two hours later, Complainant stated that he was ordered to return to the GMF. Although Complainant maintained that A-2 ordered him back to the GMF because of his "EEO," A-2 denied having any knowledge of Complainant's EEO activity.
After his return to the GMF, B-1, Complainant's immediate supervisor, informed A-1 that she was short-staffed on Saturdays because, among other reasons, Complainant had Saturdays off. A-1 indicated, however, that Complainant's current job offer did not guarantee him Saturday's off, but rather designated his off days as, "Sunday and Rotating." B-1 then began scheduling Complainant on Saturdays to help cover the workload.
Complainant filed a complaint alleging that the Agency discriminated against him on the bases of his disability (knee and back impairments) and reprisal for prior protected EEO activity when: (1) on or around July 16, 2007, management instructed him to return to the Time Unit at the GMF; and (2) on or around July 18, 2007, management informed him that his days off were changed from weekends to rotating days off.
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing. Over complainant's objections, the AJ assigned to the case granted the Agency's August 17, 2007 motion for a decision without a hearing and issued a decision without a hearing on September 25, 2009. The AJ found that Complainant was not discriminated against with regard to both claims. The Agency issued a final order that adopted the AJ's findings. This appeal followed.
The record contains an unsworn statement from C-1, President of the Union, who stated, in pertinent part, that on June 27, 2007, he expressed his "frustration" to B-1 that "the carriers who were sent over to CFS had almost no work to do over there and were extremely bored and upset that they were moved." According to C-1, B-1 "agreed with me that they [sic] was very little work available and stated that the work was at the stations." The record also contains a July 16, 2007 memo written by C-2, the ex-Vice President of the Union. C-2 noted that he interviewed B-1 on July 12, 2007 about the Time Unit. According to C-2's memo, B-1 was concerned from the beginning that there would not be sufficient work for the employees until many logistical steps had been worked out. When employees first reported in April, B-1 stated that there was very little work. At the time of the interview, which was three months later, B-1 estimated that the Time Unit employees averaged downtime of "50% of their work day." B-1 signed the memo indicating that she had "[r]ead and agree[d] with [the] above." The record does not contain an affidavit from B-1 as part of the EEO investigation.
CONTENTIONS ON APPEAL
Among other things, Complainant reiterated the assertion made in both his affidavit and his opposition to the Agency's motion for a decision without a hearing that his return to the GMF was the result of his refusal to withdraw a pending EEO complaint. Specifically, Complainant maintained that 2 hours after he told a named EEO official that he would not "drop" his EEO, he was ordered to return to the GMF. He also noted the statements concerning the workload at the GMF.
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the EEOC Administrative Judge (AJ) to have issued a decision without a hearing on this record. 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, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
We find that the AJ erred in issuing a decision without a hearing. At the outset, the AJ never addressed Complainant's allegation that his return to the GMF was, contrary to A-1's assertion, the result of his refusal to withdraw a pending EEO complaint. The record we note does not contain an affidavit from, D-1, the named EEO official, even though Complainant's assertion is contained in his affidavit. According to A-1, she was not aware of any conversation between Complainant and D-1. The AJ appears to have accepted A-1's testimony as credible including her assertion Complainant was transferred back to the GMF to occupy a position that was consistent with his restrictions. According to the AJ, Complainant was "[m]erely returned to his prior modified duty assignment after he informed management that he was medically unable to perform a full-duty carrier assignment at the Meadow Mesa station." The AJ also appears to have accepted as credible A-2's denial of not having any knowledge of Complainant's EEO activity.
In addition, we note the statement of C-1 and the memo of C-2 which casts doubt upon the Agency's assertion that the Time Unit was short-staffed and that Complainant was needed to work on Saturdays to help with the workload. According to B-1, employees experienced 50% downtime during the period that Complainant returned to the GMF.
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 EEO-MD-110, Chapter 7, � 1; 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 [employees] of a full and fair investigation of [their] claims." Mi S. Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998); see also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995).
CONCLUSION
Based on a thorough review of the record, including Complainant's arguments on appeal and arguments and evidence not specifically discussed in this decision, the Commission VACATES the Agency's final order and REMANDS the matter for a hearing to specifically address Complainant's allegations.
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 hold a hearing and 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 (K0610)
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 (M0610)
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), at 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 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 (R0610)
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 (Z0610)
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
_5/7/13_________________
Date
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0120100484
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100484