01980547
03-28-2000
Donnett G. Jenkins, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Northeast/New York Metro Region), Agency.
Donnett G. Jenkins v. United States Postal Service
01980547
March 28, 2000
Donnett G. Jenkins, )
Complainant, )
) Appeal No. 01980547
v. ) Agency No. 1A106104094/4294
) Hearing No. 160-97-8549X/8550X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Northeast/New York Metro Region), )
Agency. )
)
DECISION
Complainant filed a timely appeal from a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (Black), national origin (Black), sex (female), reprisal
(prior EEO activity), and physical disability (bilateral carpal tunnel
syndrome with ulnar neuropathy), in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; and
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). The following decision VACATES
AND REMANDS the agency's FAD.
The record reveals that during the relevant time, complainant was employed
as a Distribution (Letter Sorting Machine) Clerk at the agency's Mount
Vernon, New York postal facility. She filed two formal complaints against
the agency, claiming that she was discriminated against on the bases of
race, sex, national origin, and reprisal as follows: (1) on July 15,
1994 she was charged with AWOL (absence without leave), and on July 25,
1994, her supervisor (S) failed to conduct an exit interview in connection
with her removal; and (2) on June 17, 1994, she did not receive payment
for sick leave as she had requested, and her employment was terminated
with a Letter of Removal (LOR) which charged her with abusive language
toward S, and failure to meet attendance requirements.
At the conclusion of the investigation of these complaints, complainant
was provided with a copy of the investigative file and requested a
hearing before an EEOC Administrative Judge (AJ). The AJ ordered that
the case be remanded back to the agency for a supplemental investigation
upon her finding that complainant had also claimed discrimination on the
basis of disability, and also raised the issue of the agency's failure
to accommodate this disability by refusing to excuse her use of leave.
At the conclusion of this supplemental investigation, the AJ rendered
a Recommended Decision (RD) without a hearing.
Assuming arguendo that complainant had established a prima facie case
of discrimination on all of the claimed bases, the AJ then concluded
that the agency articulated legitimate, nondiscriminatory reasons for
its failure to timely approve the July 15, 1994, leave request, instead
charging complainant with AWOL, namely that due to the hectic pace on
the day the request was submitted, and the Manager's rush to leave on
vacation, the approval was delayed and AWOL was charged as a result.
The AJ additionally found that the agency articulated a legitimate
nondiscriminatory reason for the Manager's failure to conduct an exit
interview when complainant was terminated, when he testified that he
did not conduct these interviews for any departing employees. The AJ
then held that complainant failed to submit evidence to show that these
reasons were a pretext for discrimination, and recommended a finding of
no discrimination.
Again assuming that a prima facie case of discrimination had been
established on all bases, the AJ found that the agency proffered a
legitimate nondiscriminatory reason for its failure to pay complainant
for her sick leave on the date in question, noting that the record
showed that a Data Clerk error was responsible, and not S. Again, the
AJ recommended a finding of no discrimination finding that complainant
failed to produce any evidence to suggest that the agency's reasons were
a pretext for discrimination.
Regarding her removal, the AJ determined complainant was unable to
identify similarly situated employees who were treated more favorably when
they used abusive language toward their supervisors, noting that none
of the comparators identified by complainant had a disciplinary record
similar to complainant's. The AJ also held that although complainant
established a prima facie case of reprisal regarding the abusive language
charge, she failed to show that reprisal was a factor in the agency's
decision to terminate her employment for this reason. The AJ additionally
determined that this charge, standing alone, absent the showing of a
discriminatory motive, was sufficient to justify complainant's removal.
Accordingly, the AJ recommended a finding of no discrimination on
this issue. However, with respect to the charge that complainant used
excessive leave, the AJ recommended a finding of discrimination, holding
that the agency failed to accommodate complainant's disability when it
did not excuse these absences. Based on this finding of discrimination,
the AJ ordered the agency to: pay complainant for all leave, medical
expenses and associated costs resulting from its failure to accommodate
up to the effective date of removal; to pay reasonable attorney fees;
and to post a Notice regarding this finding.
The FAD adopted that part of the RD which recommended findings of no
discrimination, but rejected the AJ's finding of discrimination regarding
the failure to accommodate issue. Furthermore, on appeal, the agency
contends that the AJ erred when she failed to conduct a hearing on this
issue, arguing that issues of material fact were in dispute regarding
the existence of a nexus between complainant's disability and her leave
requests, and whether the agency knew, or should have known that this
leave was being requested as an accommodation. The agency also argues
that it was not given an opportunity to present an undue hardship defense.
In her appeal, complainant also argues that the AJ erred in failing to
conduct a hearing given the complexity of the issues and the credibility
dispute regarding whether she used abusive language as charged, and also
whether this was sufficient to justify her removal in light of a union
arbitration decision that it was not.<2>
However, regarding complainant's removal, we find that the AJ erred
in determining that there were no genuine issues of material fact.
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 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,
complainant has failed to establish the essential elements of his or
her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173
(3d Cir. 1988). In determining whether to grant 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.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).
We note that the hearing process is intended to be an extension of the
investigative process, designed to "ensur[e] that the parties have a
fair and reasonable opportunity to explain and supplement the record
and to examine and cross-examine witnesses." See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
6-1 (November 9, 1999). "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).
Although we need not now determine whether complainant is a qualified
disabled individual under the Rehabilitation Act, even assuming that she
is for the purpose of analysis, we find that the AJ erred in failing to
conduct a hearing in this case. Specifically, in reviewing the record,
we agree with the agency that it is a matter of dispute as to whether
complainant's many leave requests were related to her claimed disability.
Although the AJ finds that this nexus exists, our review of the record
fails to confirm this because many of the leave requests do not indicate
a reason for the leave. Testimony of both complainant and S would be
pertinent to this inquiry as complainant claims that she discussed her
need for leave on several occasions with S. Moreover, the AJ includes
in her analysis the leave used by complainant in connection with a neck
and shoulder injury, in addition to her carpal tunnel disability, but
does not address whether the former is a disability within the meaning of
the Rehabilitation Act. Further development of the record on this issue
is necessary as a preliminary step to defining the disability at issue,
and in determining whether complainant is an individual with a disability
under the Rehabilitation Act, all of which must be ascertained prior to
determining whether there is a nexus between complainant's leave and her
"disability."
Additionally, further development is necessary, via testimony of the
responsible agency officials and complainant, as to whether the agency
was on notice, either actually or constructively, that complainant's
use of leave constituted a request for an accommodation. See McNeil
v. U.S. Postal Service, EEOC Appeal No. 05960436 (July 28, 1998).
Furthermore, a hearing is needed in order to provide the agency with an
opportunity to set forth an undue burden defense. See EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans With Disabilities Act, No. 915.002 (March 1, 1999).
We also find that a hearing is necessary in light of the credibility
issues involving the abusive language charge, where the complainant denies
engaging in this conduct as charged, and where the AJ relies only on
the credibility determination, based on "witness demeanor," in the union
arbitration proceeding as a means of resolving this evidentiary conflict.
Further development is also needed to address the issue of whether this
charge, if proven, is sufficient to justify complainant's removal in
light of the arbitration determination that it is not.
Additionally, we find that a hearing should also be conducted regarding
complainant's claims of discrimination regarding the handling of her leave
and S's failure to conduct an exit interview, as more fully referenced
above, so that the entire matter of this complainant can be considered
by the AJ.
In summary, there are simply too many unresolved issues which require an
assessment as to the credibility of the various management officials and
complainant herself. Therefore, judgment as a matter of law on these
issues should not have been granted.
Accordingly, we VACATE the FAD in pertinent part, and REMAND this matter
to the agency in accordance with this decision and the ORDER below.
ORDER
The complaint is remanded to the Hearings Unit of the appropriate EEOC
field office for scheduling of a hearing in an expeditious manner.
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. � 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R1199)
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:
March 28, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The arbitration decision held that the removal was justified based on
the abuse of leave charge, but not on the abusive language charge.