01A21283
09-03-2003
Edwin W. Giminez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area) Agency.
Edwin W. Giminez v. United States Postal Service
01A21283
September 3, 2003
.
Edwin W. Giminez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area)
Agency.
Appeal No. 01A21283
Agency No. 4E 590-000-301
Hearing No. 320-A1-8254X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of 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 accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission VACATES
the agency's final order and remands the matter for a hearing.
The complainant is employed as a city letter carrier at the agency's
Great Falls Post Office in Great Falls, Montana. He alleges he was
discriminated against when he was not selected for a position as a
Custodian because of his age (DOB 1/24/52;48 years old) and disability
(neck, back, flat fee, hiatal hernia).
Complainant's complaint was investigated and he requested a hearing before
an EEOC Administrative Judge (AJ). The AJ issued a decision without a
hearing based on a finding that there were no material facts in dispute.
The agency implemented the AJ's decision.
The AJ found that complainant was not an individual with a disability
within the meaning of the law because he was not substantially limited
in a major life activity. The AJ reached this conclusion based on
complainant's statement that he was able to perform all the functions
of the custodial position, such as emptying the trash, cleaning the
bathrooms, sweeping the floors and shoveling the sidewalks. He further
concluded that complainant presented no evidence that the complainant
had a record of a disability or that he was regarded as disabled.
Addressing complainant's claim of age discrimination, the AJ concluded
that complainant established a prima facie case of age discrimination,
but that the agency stated a legitimate non-discriminatory reason for
not selecting complainant. The AJ did not make a specific finding what
the agency's reason for not selecting complainant was, but he found
that the complainant did not demonstrate that his qualifications were
plainly superior to those of the selectees. In the final analysis,
the AJ decided that complainant did not prove the agency was motivated
by factors related to complainant's age or disability.
On appeal, complainant contends that the agency failed to respond to his
discovery requests for the qualifications of the other applicants and
their status as an individual with a disability. He also contends that he
was not given the opportunity to supplement his responses to discovery.
Complainant further contends that the AJ's decision to issue a decision
without a hearing was in error because there was a question whether his
medical conditions rendered him substantially limited in a major life
activity. Complainant argues that the AJ erred in issuing a decision
without a hearing because the record was not fully developed and because
discovery was not completed.
The agency argued that the AJ correctly determined that complainant was
not an individual with a disability because the only evidence available
was a letter outlining his service- connected disability rating.
The agency also contended that complainant's own statement that he
was able to perform the functions of the job, indicated he was not
substantially limited in a major life activity and, therefore, the AJ's
decision to issue a decision without a hearing was appropriate.
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). 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 only 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, summary judgment is not
appropriate. In the context of an administrative proceeding, an AJ may
properly consider a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
In this case, we conclude the AJ improperly issued a decision without a
hearing because there was a genuine issue of material fact as to whether
complainant was an individual with a disability and alternatively, whether
the agency regarded complainant as disabled when it did not select him
for the custodial position. The record indicated that complainant had a
record of service-connected disabilities of at least 50%.<1> Thus, the
extent and severity of his service related conditions raised a question
of fact whether complainant's conditions rendered him an individual with
a disability within the meaning of the law. If the evidence bears out
that he is an individual with a disability, there is also a question of
fact whether was discriminated against because of a disability when he
was passed over on four occasions for a job for which he was, arguably,
qualified.
Complainant argued that he was able to perform all the essential functions
of the position without any accommodation but that he was treated less
favorably because he had a back condition. The record indicates that
the selecting official was aware of complainant's medical conditions at
the time of her selection through complainant's statements and agency
documentation. Record evidence also indicated that the selecting
official made notations on each applicant's record indicating their
history of �extended illnesses or injuries,� job-related accidents and
sick leave usage which raises the inference that the applicants' medical
conditions may have played a role in the selection process. Moreover,
each applicant was asked whether he or she had any" physical or mental
limitation which would restrict them from performing the duties of the
position." In addition, the record reflected that the selectee had no
history or record of illnesses, injuries or accidents. Thus, the manner
in which the selection was made raised the question whether the agency
violated the law governing medical inquiries during the application
process and whether complainant's medical conditions were a factor in
his non-selection. See 29 C.F.R. �1630.14; ADA Enforcement Guidance:
Pre-employment Disability-Related Questions and Medical Examinations
(October 10, 1995).
The record also indicated there was an issue of material fact as to
whether complainant's age was a factor in his non-selection because the
agency did not dispute his contention that he had more related experience
in maintenance work and previous experience in a custodial position than
the substantially younger selectee.
In addition, complainant argued that he attempted to discover the relative
qualifications of the selectees for other similar positions but that
the agency refused to answer his discovery requests. He also raised
the issue of an inadequate opportunity for discovery in his Objection
to Notice to Issue Findings Without Holding a Hearing and in a Motion
to Compel Discovery. The record reveals that the AJ's decision did not
address complainant's arguments or rule on the Motion to Compel Discovery.
The Commission's regulations and management directive require the parties
to cooperate with each other in honoring requests for relevant evidence.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(MD-110), ch.7-19 (November 9, 1999). Furthermore, discovery disputes
must be resolved by the Administrative Judge after the parties have
made a good faith effort to resolve the dispute. Id. In this respect,
the AJ has a responsibility to ensure the fairness of the hearing and
investigative process where, as here, complainant attempted to discover
whether there was a discriminatory pattern in the agency's selections.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003) (Commission held summary judgment not appropriate where outstanding
discovery requests for critical evidence were unresolved). Moreover,
complainant's discovery request regarding the selectees status vis a vis
the relevant protected groups, was a relevant request and was material
evidence not contained in the investigative record.
CONCLUSION
Based on the foregoing analysis the Commission concludes the AJ's decision
without a hearing was in error and is VACATED. This matter is hereby
REMANDED for an evidentiary hearing in accordance with the Order below.
ORDER
The agency shall submit to the Hearings Unit of the Denver 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 determine
whether to order a supplemental investigation or permit additional time
for discovery. 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 3, 2003
Date
1The correspondence from the Department of
Veterans Affairs indicated 50% service-connected disability but the
percentage disabilities when totaled equaled 60%.