0120065315
08-27-2008
David K. Sprehe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David K. Sprehe,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120065315
Hearing No. 320-2006-0031X
Agency No. 4E800008805
DECISION
On September 21, 2006, complainant filed an appeal from the agency's
August 28, 2006 final order concerning his equal employment opportunity
(EEO) complaint alleging 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 deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES
the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a City Carrier at the agency's Parker Post Office Branch in Parker,
Colorado. On January 24, 2005, complainant contacted an EEO Counselor
and filed a formal EEO complaint on May 23, 2005, alleging, in relevant
part, that he was discriminated against on the bases of race (Caucasian),
disability (right leg, lungs), and age (50) when, from April 1999 to
April 20, 2005, complainant was required to do higher-level work without
being paid the appropriate rate. The agency accepted this claim for
investigation.
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). On April 25, 2006, complainant moved for
summary judgment, which the agency opposed in its cross-motion for
summary judgment on May 5, 2006. The AJ issued a decision without a
hearing finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of race or age discrimination or, in the alternative, that he failed to
rebut the agency's proffered legitimate, nondiscriminatory reasons for
its actions. Specifically, the AJ found that complainant was unable to
show that he suffered an adverse action or was treated less favorably
than other similarly situated employees because he did not establish that
he was, in fact, performing higher level duties that merited a higher
level of pay. With regard to his disability claim, the AJ concluded
that because complainant presented insufficient evidence that he had an
impairment which substantially limited one or more major life activities
as defined by the Rehabilitation Act, complainant failed to establish
a prima facie case of disability discrimination.
The agency's final action implemented the AJ's decision.
On appeal, complainant maintains that there is sufficient evidence in
the record to establish that he is an individual with a disability.
Further, complainant argues that the AJ improperly weighed some evidence
and ignored other evidence in the record. This, complainant argues,
requires a hearing to resolve genuine issues of material fact.
In opposition to complainant's appeal, the agency argues that the record
was adequately developed and the AJ was within his rights to issue
a decision without a hearing. Specifically, the agency asserts that
there is no evidence in the record that the AJ did not fully consider
the evidence in the record.
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . .");
see also EEOC Management Directive 110, Ch. 9, � VI.B (Nov. 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See EEOC Management
Directive 110, Ch. 9, � VI.A.
We must determine whether it was appropriate for the 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).
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand 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. Dep't of Justice, EEOC Request No. 05940339 (Feb. 24, 1995).
After a careful review of the record, we find that the AJ's decision
erred when he concluded that there was no genuine issue of material
fact in this case. In finding no discrimination, the AJ's decision was
conclusory and did not indicate what evidence of record was the basis of
his opinion. However, we find that certain pieces of evidence preclude
a finding that there are no genuine issues of material fact in dispute.
While all managing officials assert in their affidavits that complainant
did not perform any higher-level work (Complaint File (CF) Affs. B, F),
complainant produced a memorandum, handsigned by one managing official
that stated, "I will compensate [complainant] at the higher level for
time spent on payroll." CF Ex. 6; see also CF Ex. 7 ("I will compensate
you at higher level pay for your assistance."). There is no evidence
that the AJ considered these memoranda in rendering his decision.
Further, the record contains a memorandum from the Deputy Postmaster
General (DPG). CF Ex. 12. In the memorandum, the DPG states that under
the agency's Time and Attendance Collection (TAC) policy, only supervisors
or bargaining unit employees detailed to supervisory work are permitted
to perform TACs. Id. At least one agency worker, by affidavit, has
asserted that, at the very least, complainant performed TACs. CF Aff. C.
Performing TACs appears to be beyond complainant's job description.
See CF Ex. 6. The AJ's decision also does not address this evidence,
and it appears he permitted the parties to debate by memorandum and
affidavit the policy's application.
We rule that there are genuine material issues of fact as to whether
complainant performed higher level work for which he should be paid.
As we are remanding the above claim due to this ruling, we do so based
on race, age, and disability. Given the evidence in the record regarding
disability, and the likelihood that more is forthcoming at a hearing, it
would be premature at this juncture to make a ruling, as was done in the
AJ's decision, on whether complainant is an individual with a disability.
This matter is remanded with the rest of complainant's claim.
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 (Nov. 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. 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). In summary, there are simply too many unresolved
issues which require an assessment as to the credibility of the various
management officials, co-workers, and complainant, himself. Therefore,
judgment as a matter of law for the agency should not have been granted
as to all claims.
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 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 (K0408)
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 (M0408)
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 (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 (Z0408)
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
August 27, 2008
__________________
Date
6
0120065135
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036