01A00403_r
08-01-2002
Jennifer K. Allen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jennifer K. Allen v. United States Postal Service
01A00403
August 1, 2002
.
Jennifer K. Allen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A00403
Agency No. 1-G-754-0039-98
Hearing No. 310-99-5119X
DECISION
Complainant timely initiated an appeal from a final decision concerning
her complaint of unlawful 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. The agency characterized her complaint as
alleging that she was issued a Notice of Removal because of her race
(African-American), color (black), and sex (female). For the following
reasons, the Commission vacates and remands the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Casual Mail Processor at the agency's North Texas Processing
and Distribution Center facility. On December 9, 1997, complainant
underwent drug screening in connection with her application for a
career appointment. The drug test results indicated a positive test
for an illegal substance, and complainant was subsequently removed from
the hiring register and terminated. Complainant sought EEO counseling
and subsequently filed a formal complaint on January 26, 1998, alleging
in her affidavit that she was discriminated against on the above-named
bases when she was issued a Notice of Removal and denied the opportunity
to challenge the drug test as faulty.
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). The AJ issued a decision without a hearing,
finding no discrimination. The AJ noted that although complainant
compared herself to a White female who failed a drug test and stayed on
the hiring register after speaking with the agency physician about her
prescription medications, complainant was not similarly situated because
the agency asserted she had tested positive for an illegal substance
for which there
is no legal equivalent. The AJ then concluded that the agency's reason
for its Notice of Removal, that complainant failed the drug-free
requirement for the position, was legitimate and nondiscriminatory.
The AJ stated that even though complainant's subsequent drug test with
a private physician was negative, that test did not negate the previous
agency drug test given 10 days earlier. Finally, the AJ found that
there were no genuine issues of material fact because complainant failed
to present or identify any material facts which placed the agency's
articulated nondiscriminatory reasons for its action in dispute.
The agency's final action implemented the AJ's decision.
Complainant raises similar arguments on appeal to those she raised before
the agency. Complainant maintains that she was similarly situated as her
White co-worker, yet was treated differently. Both failed drug tests
administered by the agency. Both later passed drug tests administered
independently by their private physicians. Complainant's co-worker was
allowed to meet with the agency physician, who reviewed her more recent
drug tests, as well as all of the medications that were prescribed to her.
The agency physician waived the initial drug test and the co-worker was
hired by the agency. Complainant, however, was never allowed to meet
with the agency physician (the same physician that met with complainant's
co-worker) to challenge the legitimacy of the agency's drug test, and
was subsequently removed from both the hiring register and her position.
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
The Commission finds that the AJ erred when she concluded that there were
no genuine issues of material fact in this case. Although the AJ found
that complainant's comparative employee was not similarly situated with
complainant, we find that the comparative situation was similar enough
that a genuine issue exists as to whether the agency's action in not
allowing complainant to meet with the agency physician to challenge her
drug test results was discriminatory. As the record contains no statement
from the agency physician as to why, unlike her comparative employee,
complainant was not allowed a meeting to challenge her positive drug
test results, an issue of agency credibility in this matter remains.
Although there might be legitimate, nondiscriminatory reasons for the
agency's actions in not allowing complainant to challenge her drug test
results, that determination should be made after an administrative hearing
where the agency's physician can be called as a witness. In summary,
this case involves unresolved material issues which require an assessment
as to the credibility of the various management officials, co-workers,
and complainant, herself. Therefore, judgment as a matter of law for
the agency should not have been granted.
Therefore, 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
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 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
August 1, 2002
__________________
Date