01980317
03-29-2000
Eileen D. Harrington, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Eileen D. Harrington v. United States Postal Service
01980317
March 29, 2000
Eileen D. Harrington, )
Complainant, )
) Appeal No. 01980317
v. ) Agency No. 4F940116496
) Hearing No. 370-97-2331X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency action
concerning her complaint of unlawful employment discrimination 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).
Complainant claims that she was harassed and discriminated against on
the bases of race (white) and physical disability(post polio syndrome
and associated back disorder) as evidenced by the following incidents:
She was denied computer training in May 1996;
Her computer training scheduled in July 1996 was canceled; and
Her supervisor (S) made public derogatory remarks about her disability
when she informed her that she could not take computer training.
For the following reasons, we VACATE and REMAND the agency's final
decision (FAD).
The record reveals that during the relevant time, complainant was employed
as a Mail Recovery Clerk at the agency's Embarcadero postal facility
in San Francisco, California. She claims that since being assigned
to S's unit (approximately 18 months prior to May 1996), that S has
"continuously harassed her" identifying numerous incidents and examples
to support her claim. Believing she was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a formal
complaint. At the conclusion of the investigation, complainant received
a copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
finding no discrimination.
The AJ concluded that complainant established a prima facie case of
race discrimination, finding she was a member of a protected class and
that similarly situated workers outside of her class were treated more
favorably when they received computer training sooner than she did.<2>
The AJ also determined that complainant was a qualified individual with
a disability under the Rehabilitation Act,<3> and that she established
a prima facie case of disability discrimination regarding the computer
training.
The AJ then concluded that the agency proffered legitimate,
nondiscriminatory reasons for its decisions, namely, that S could only
send 15 employees from the unit to the training and she selected those
who used a computer the most. Regarding the canceled course, the AJ found
that record evidence confirms that it was canceled by a technician, due
to under-enrollment, who re-scheduled complainant to take the course the
next month. The AJ then noted that complainant used the computer very
little in her job because she was restricted in repetitive motion due
to her disability. Finally, the AJ found that complainant had failed
to show that either proffered reason was a pretext to mask discrimination.
In addressing incident 3, the AJ noted that there was a dispute as
to whether S made disparaging remarks to complainant regarding her
disability, but found that even if she had, no harm to a term or condition
of employment resulted from the remarks. The AJ held that the remarks,
standing alone, did not constitute adverse employment actions.
Regarding all of her findings, the AJ held that the record failed to
show a dispute concerning a genuine issue of material fact, and that
judgment in favor of the agency was mandated by law because complainant
failed to sustain her burden of proof.
The FAD adopted the RD. On appeal, the agency requests that we affirm
its FAD. Appellant contends that the AJ committed error in her findings.
She argues that the identified incidents are part of a much larger pattern
of continuous harassment, and that all of her claims must be evaluated
to see this pattern. She also contends that S's testimony is untruthful
regarding working conditions and her denial concerning the derogatory
remarks. Specifically, complainant claims that S forced her to work
outside her medical restrictions and to use a typewriter instead of a
computer, which is why she used the computer less than the 15 selected
for the training. She also maintains that the computer training she
desired required very little actual typing, and would have allowed her
to perform her job much more efficiently with much less adverse impact
on her disability. Complainant contends that she was initially denied
the training as a form of harassment, and that the manner in which it
was denied (public derogatory remarks) is evidence of S's discriminatory
animus. She further claims that S gave the more desirable assignments
to Black, non-disabled workers, enhancing their promotion potential,
but that she was only given menial assignments and those which were
considered "dirty." Complainant also makes additional detailed statements
regarding her harassment claim, asking that her claim be addressed with
consideration to all of the incidents which she sets forth.
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).
Although we need not now determine whether complainant is a qualified
disabled individual under the Rehabilitation Act, even assuming that
she is, we find that the AJ erred in failing to conduct a hearing in
this case. Specifically, 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 discrimination, the AJ
relied on the representations in S's affidavit, which complainant has
challenged as untrue regarding material facts, as noted above. In fact,
on appeal, complainant submits the affidavit of a co-worker which tends
to corroborate her contention that S's testimony is not credible.
Additionally, we find that a determination on whether S made the
derogatory remarks claimed is necessary, because this could potentially be
"direct evidence" of discrimination, or at least probative evidence of
S's discriminatory animus. Moreover, we find that the agency fragmented
complainant's claim in order to avoid addressing the issue of harassment
in light of her numerous statements regarding this claim throughout the
record. Consequently, we find that the AJ erred when she failed to order
discovery in order to develop complainant's claim of harassment.
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 EEOC Management Directive
(MD) 110, as revised, November 9, 1999, Chapter 6, page 6-1; see also 64
Fed. Reg 37,644, 37,657 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �� 1614.109(c) and (d)). "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).
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 VACATES
the FAD and REMANDS the matter in accordance with this decision and the
ORDER below.
ORDER
The complaint is remanded to the Hearings Unit of the San Francisco EEOC
District for scheduling of a hearing in an expeditious manner, and to
conduct discovery on complainant's harassment claim as well as any other
issues requiring further development in conjunction with this hearing.
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 29, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2Although complainant disputes it on appeal, the record shows that she
ultimately completed the computer training at issue on August 12, 1996.
3The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website at www.eeoc.gov.