01983971
06-12-2001
Jody P. Lugo, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (New York Metro Area), Agency.
Jody P. Lugo v. United States Postal Service
01983971
June 12, 2001
.
Jody P. Lugo,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Appeal No. 01983971
Agency No. 4-A-070-1126-96
Hearing No. 170-97-8118X
DECISION
Complainant timely initiated an appeal from a final agency action
concerning his 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleges he was discriminated against
on the basis of his disability (reading) when on April 26, 1996, he was
advised that he would not be employed by the agency.
For the following reasons, we REVERSE and REMAND the agency's final
action.
The record reveals that during the relevant time, complainant was
an applicant for a letter carrier position at the agency's Newark
Processing & Distribution, Newark, New Jersey facility. When viewing
the record in the light most favorable to the complainant, the record
reveals the following: On April 26, 1996, complainant was interviewed by
the Human Resources Specialist (HR) for the position of letter carrier.
During the interview, complainant was asked about certain gaps in his
employment history. Complainant explained that he lived in Puerto Rico
during those gaps in his employment history and was not employed. HR then
asked him to fill in the gaps in his employment on his application.
Complainant asked HR how to spell �unemployed.� HR asked complainant
why he did not know how to spell unemployed. Complainant explained
that he had a problem reading and spelling. HR then had complainant
read a �religious convictions� statement which, according to HR was done
in a �halting� manner and only with her help. HR asked complainant to
explain what he had just read, to which he responded that it was about
applications. HR explained to complainant that he has to be able to
read to be a letter carrier. Complainant responded by stating that his
father and brothers were carriers at the agency and were not required
to read to perform their jobs. HR terminated the interview.
On May 2, 1996, HR's office sent a letter to complainant advising him
that �it has been determined that you do not have the basic competence
in reading, speaking, and understanding English, therefore, you will
not be considered for employment at present for the position.�
In June 1996, complainant met with supervisors at the Plainfield Post
Office requesting an opportunity to show that he was capable of performing
the letter carrier duties. The supervisors at Plainfield Post Office
gave complainant the opportunity to unofficially case mail for one week
to see if he could handle the job. The supervisors determined that
complainant accurately performed his duties during the period of time he
cased mail on a trial basis. These supervisors also attempted to get
Human Resources officials to review complainant's case and reconsider
hiring him. However, Human Resources officials never responded to calls
placed by the supervisors on behalf of complainant.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint on July 28, 1996.
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 concluded that complainant failed to establish that he has a
disability as required under the Rehabilitation Act. Specifically,
the AJ noted that while it was undisputed that complainant reads at
a lower grade level (i.e., fourth grade), he did not establish that
his reading and spelling problems rise to a level of an impairment.
In addition, while complainant presented a diagnostic report after
the interview which reveals that complainant possesses �speech and
language deficits ... auditory comprehension/memory deficits along with
poor vocabulary development, limited syntactic competence and reduced
referential communication skills,� the AJ found that he, nevertheless,
failed to show that said deficits rise to the level of an impairment.
Further, the AJ noted that the agency did not receive the diagnostic
report until after its employment decision. The AJ also found that
assuming, arguendo, complainant established that he was disabled under the
Rehabilitation Act, he nevertheless, failed to show disparate treatment
since �another individual, who was not mentally disabled, with reading
comprehension problems was hired by the agency.� Lastly, the AJ found
that the agency articulated a legitimate non-discriminatory reason for
its employment decision and complainant did not establish pretext.
The agency's final action implemented the AJ's decision.
Complainant raises no new contentions on appeal. The agency stands on
the record and requests that we affirm its final action implementing
the AJ's decision.
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 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 does not
sit as a fact finder. Id. 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. A disputed 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 under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
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).
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 herein.
While we agree that complainant failed to raise a genuine issue of
disputed material fact on the issue of whether he was disabled, he
certainly did raise a genuine issue of disputed material fact on the
issue of whether he was regarded as disabled.
Upon review of the record, we believe there exist sufficient material
facts in dispute which would allow a reasonable fact finder to conclude
that complainant was not hired by the agency due to his perceived
learning disability. The record indicates that during the interview,
HR determined that complainant only held a fourth grade reading level.
However, HR was aware that complainant was a high school graduate.
We find that a reasonable fact-finder could conclude that HR perceived
complainant's reading and writing problem to rise to the level of
impairment since he also held a high school diploma. In other words,
complainant's lack of reading and writing abilities could have been viewed
by HR as not being the result of a lack of education but rather likely a
mental impairment. In addition, the record indicates that complainant
was born and raised in the United States. If HR knew that English was
complainant's first language, it would support the likelihood that the
agency perceived complainant's fourth grade reading level to be caused
from a mental impairment rather than lack of education. We also find
that a reasonable fact finder could conclude that complainant was regarded
as being substantially limited in the major life activity of learning.
In addition, we find insufficient evidence in the record to support the
finding that complainant was not qualified to perform the essential
functions of the letter carrier position. While the record contains
a �suitability and selection guide� issued by the agency to assist
individuals in charge of making hiring selections, the guide simply
indicates that the selectee must be able to �receive and transmit
information effectively in oral form as required by the job and comprehend
written and oral instructions adequately for safe and effective job
performance.� (emphasis added). There is nothing in the record which
indicates what the specific job of letter carrier requires with respect
to reading and writing. Moreover, the only evidence in the record
which relates to complainant's job qualifications indicates that he
is qualified to perform the job.<1> Accordingly, the record evidence
presents a genuine dispute of material fact on the issue of whether
complainant was a qualified individual with a perceived disability within
the meaning of the Rehabilitation Act.
The undisputed record shows that HR failed to hire complainant because
he lacked the �basic competence in reading, speaking and understanding
English.� If, after a hearing, a fact finder determines that complainant
was regarded as disabled, this explanation for non-hiring would amount
to direct evidence of discrimination. The agency would then be required
to show that it would have made the same decision absent discrimination.
See Walker v. Social Security Administration, EEOC Request No. 05980504
(April 8, 1999); Stock v. Department of Justice, EEOC Appeal Request
No. 05980053 (January 8, 1999) (affirming Stock v. Department of Justice,
EEOC Appeal No. 01953223 (September 12, 1997) holding that selecting
official's expressed doubts as to complainant's ability to perform
duties given his medical restrictions amounted to direct evidence of
discrimination based on perceived disability).
There is a remaining question of whether HR's pre-employment disability
related questions and the examination required of complainant were a
per se violation of the Rehabilitation Act. While not completely clear,
the record seems to suggest that complainant voluntarily explained that
he had a learning problem in response to a possibly legitimate request
by HR that complainant fill in the gaps of his employment directly on
his application. When complainant could not spell �unemployed,� the
record seems to indicate that HR became suspicious that complainant had
a learning problem. HR then began to ask complainant about his learning
problem and administered an examination of complainant by requiring that
he read and explain a �religious convictions� paragraph. A reasonable
fact finder could conclude that the examination administered by HR,
helped HR to conclude that complainant was not qualified for the position.
Under the Rehabilitation Act, when an employer reasonably believes that
an applicant will not be able to perform a job function because of a
known disability, the employer may ask that particular applicant to
describe or demonstrate how he would perform such function. We find
that the record could support the finding that HR's requirement that
complainant read and explain a �religious convictions�statement failed to
meet the requirements of the Rehabilitation Act. There is no evidence
in the record which indicates that reading and understanding such a
statement was a job function of the letter carrier position. Moreover,
the requirement seems more likely to have been intended to test the extent
of complainant's learning deficiencies. See ADA Enforcement Guidance:
Preemployment Disability-Related Questions and Medical Examinations,
October 10, 1995.
In addition to finding facts sufficient to defeat summary disposition on
the issues set for above, we find that the record could be developed
better so that the open issues raised above could be addressed.
Accordingly, we find that this matter should be remanded for a hearing
on all issues set forth above. We note that the hearing process is
intended to be an extension of the investigative process, designed
to �ensure 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 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).
Since there are numerous issues, both undeveloped and unaddressed by
the AJ, we find remand is appropriate.
Therefore, after a careful review of the record, and arguments and
evidence not specifically discussed in this decision, 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 Philadelphia 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 (K0900)
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)(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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
June 12, 2001
__________________
Date
1When provided the opportunity, complainant was able to perform the
job without any errors.