Eileen D. Harrington, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionMar 29, 2000
01980317 (E.E.O.C. Mar. 29, 2000)

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.