01980846
10-23-1998
Comedia Smith, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.
Comedia Smith v. United States Postal Service
01980846
October 23, 1998
Comedia Smith, )
Appellant, )
)
v. ) Appeal No. 01980846
) Agency No. 1-H-321-1064-95
William J. Henderson, ) Hearing No. 150-95-8548X
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
___________________________________)
DECISION
INTRODUCTION
On November 4, 1997, Comedia Smith (appellant) timely appealed the final
decision of the United States Postal Service (agency), dated October 3,
1997, concluding she had not been discriminated against in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq., and the Age Discrimination in Employment Act (ADEA) of 1967,
29 U.S.C. �621 et seq. In her complaint, appellant had alleged that
officials at the agency's General Mail Facility in Jacksonville, Florida,
discriminated against her on the bases of her race (black), sex (female)
and/or age (53) when, in January 1995, she became aware that a white
male employee was given the opportunity to resign in lieu of termination
when he failed to qualify on his scheme, and was immediately reinstated
to another position, while she was not given the same opportunity.
This appeal is accepted in accordance with the provisions of EEOC Order
No. 960.001.
ISSUE PRESENTED
The issue presented in this appeal is whether the administrative judge,
in making the decision not to hold a hearing, erred in determining that
there were no genuine issues of material fact.
BACKGROUND
At the time the events at issue occurred, appellant had been employed
at the Jacksonville postal facility as a PS-05 MPLSM Distribution Clerk
Trainee since July 1993. She had previously worked for the postal service
from June 1978 through March 1989, when she had voluntarily resigned.
In March 1994, appellant completed the on-the-job training course for
her LSM (Letter Sorting Machine) scheme.<1> At the end of the training,
she failed the scheme examination and the agency initiated action to
terminate her employment. However, as a result of a grievance filed
pursuant to the agency's collective bargaining agreement, appellant was
given an additional 20 hours of training. By the end of that period,
appellant still failed to qualify on her scheme. By letter dated May 25,
1994, the agency informed appellant that she would be removed from the
postal service on July 1, 1994, should she continue to fail to qualify on
her scheme by that date. Appellant again contested the proposed removal,
but her grievance was denied by management. Appellant's employment with
the agency ended on July 1, 1994.
On February 22, 1995, appellant filed a formal EEO complaint with
the agency, alleging that the agency had discriminated against her
as referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On August 6, 1997, the AJ concluded that no genuine factual disputes
existed and, therefore, pursuant to 29 C.F.R. �1614.109(e), issued
a recommended decision without a hearing, finding no discrimination
had occurred. On October 3, 1997, the agency issued a final decision
adopting the findings and conclusions of the AJ. It is from this decision
that appellant now appeals.
On appeal, appellant's main contention is, in essence, that the AJ erred
in issuing a recommended decision without a hearing because there were
material facts in dispute which could only be resolved through a hearing.
Most significantly, appellant points to the fact that her complaint of
discrimination was premised on the fact that another employee (white
male; age/not identified) who received training with appellant and
similarly failed to qualify on his scheme, was treated more favorably.
The AJ, based on the evidence of record, found this individual was not
similarly situated to appellant. Appellant, however, contends that this
was a crucial material fact in dispute, and the dispute should have been
resolved through evidence gathered at a hearing.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a
hearing when s/he 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 United
States Supreme Court has stated that summary judgment is appropriate where
the trier of fact determines that, given applicable substantive law, no
genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). An issue is "genuine" if the evidence is such
that a reasonable fact-finder could find in favor of the non-moving party.
Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). In the
context of an administrative proceeding under Title VII, summary judgment
is appropriate if, after adequate investigation, appellant has failed
to establish the essential elements of his/her case. Spangle v. Valley
Forge Sewer Authority, 839 F.2d 171, 173 (3d Cir. 1988). In response to a
motion for summary judgment, the trier of fact's function is not to weigh
the evidence and render a determination as to the truth of the matter,
but only to determine whether there exists a genuine factual dispute.
Anderson, 477 U.S. at 248-49.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2 766, 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 judgement on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
After a careful review of the record, we find that the AJ erred when she
concluded that there was no genuine issue of material fact in this case.
In finding no prima facie case of discrimination, the AJ concluded that
"there has been no showing that the cited comparator employee had a
similar record of removal actions, grievance settlements or extensive
opportunities for qualifying." Appellant maintains that the AJ relied
solely on the representations of agency witnesses without considering
gaps in the factual record and appellant's contrary representations.
The Commission's review of the investigative file revealed documents
which suggest that the comparator cited by appellant had, in fact,
filed several grievances over earlier attempts to remove him for failure
to qualify on his scheme, and had been given an additional 15 hours of
training in April 1994 and another 20 hours in September 1994. Despite
the additional training he was unable to qualify on his scheme and his
removal was proposed. He filed another grievance over his removal and, as
settlement of the grievance, was allowed to resign on December 27, 1994,
"in order to return as a transitional employee to settle [the] grievance."
The comparative returned to agency employment as a transitional employee
in early January 1995. The management official who entered into this
settlement agreement with the comparative employee was the same individual
who had, several months before, denied appellant's grievance concerning
her removal. If, in fact, appellant and the comparative employee are
similarly situated, as they appear to be, the agency has provided no
explanation for why they were treated differently.
Based on its independent review of the record, the Commission concludes
that the factual aspects of this case are simply too conflicting to
permit a recommended decision without a hearing. EEOC regulations
plainly indicate that the hearing is intended as a continuation of the
investigatory process. Truncation of this process, while material facts
are still in dispute and the credibility of witnesses is still ripe for
challenge, improperly deprives appellant of a full and fair investigation
of her claims. Therefore, we find that the AJ erred when she issued a
recommended decision without a hearing, and the final agency decision
which adopted the AJ's decision must be reversed.
CONCLUSION
Accordingly, for the reasons stated above, the agency's decision is
REVERSED and the case is REMANDED, pursuant to the following Order,
for a hearing.
ORDER
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.109 et seq. The agency shall acknowledge to the
appellant that it has received the remanded complaint within thirty
(30) calendar days of the date this decision becomes final and advise
appellant that it has requested the appointment of an EEOC AJ pursuant to
29 C.F.R. �1614.109(a). The agency shall make every effort to expedite
the scheduling of a hearing on this matter.
A copy of the agency's letter of acknowledgment to appellant and a
copy of the notice requesting an EEOC AJ must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Oct 23, 1998
_________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The record indicates that, pursuant to a grievance settlement,
appellant was given an extra ten hours to pass lessons 9 and 10 of her
scheme training.