01986497and01996303
07-17-2000
John T. King, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John T. King, )
Complainant, )
) Appeal Nos. 01986497
v. ) 01996303
) Agency Nos. 4H-335-0164-97
William J. Henderson, ) 1H-336-0037-97
Postmaster General, ) Hearing No. 150-97-8536X
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated appeals from two final agency decisions
concerning his two equal employment opportunity (EEO) complaints 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.<1>
Both appeals are accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405), and are hereby consolidated.
Complainant alleges he was discriminated against on the bases of race
(White) and reprisal (prior EEO activity) when:
(1) on April 4, 1997, he received a letter of warning; and
(2) on April 26, 1997, his bid job was abolished.
The record reveals that during the relevant time, complainant was
employed as a full-time regular Window Clerk at the agency's Ybor City
facility in Tampa, Florida. On February 19, 1997, complainant had a
verbal altercation with his supervisor. Complainant and his supervisor
offer differing accounts of this incident, which arose after complainant
went to the restroom while in the middle of assisting a customer who was
waiting at the counter. The supervisor thereafter initiated disciplinary
action, which resulted in issuance of a letter of warning received by
complainant on April 4, 1997. On the same date, complainant received
a notice that his bid job would be abolished effective April 26, 1997.
Complainant filed a formal EEO complaint with the agency on April 25,
1997 (agency case no. 4H-335-0164-97), alleging that the agency had
discriminated against him as referenced above. At the conclusion of the
investigation, complainant received a copy of the investigative report
and requested a hearing before an EEOC Administrative Judge (AJ). The AJ
issued a decision without a hearing, finding no discrimination, and by
final agency decision dated August 20, 1998, the agency adopted the AJ's
findings. This agency decision is the subject of appeal no. 01986497.
On June 17, 1997, complainant filed a second complaint (agency case
no. 1H-336-0037-97), which the agency dismissed on the ground that it
raised the same claim as claim (2) pending before the agency in case
no. 4H-335-0164-97. Complainant appealed the dismissal. By Commission
decision dated July 14, 1998, the final agency decision in agency case
no. 1H-336-0037-97 was vacated, on the ground that the agency had failed
to provide documentation in support of its conclusion that the complaint
raised the same claim previously raised. On remand, the agency again
dismissed the second complaint, this time relying on the EEOC AJ's
recommended findings and conclusions in agency case no. 4H-335-0164-97,
issued on August 20, 1998. This agency decision is the subject of appeal
no. 01996303.
Appeal No. 01986497
In issuing a decision without a hearing on the merits of complainants'
two claims, the AJ concluded that complainant failed to establish a
prima facie case of race discrimination because complainant failed to
demonstrate that similarly situated employees not in his protected class
were treated differently under similar circumstances. Specifically,
the AJ found that while complainant had identified eight comparators,
six were of the same race as complainant, and the remaining two, while
outside his protected class, had neither engaged in similar conduct
nor been treated more favorably. The AJ further found that complainant
did establish a prima facie case of retaliation because at least one of
the responsible managers was aware of complainant's prior EEO activity,
and complainant's most recent EEO activity occurred within months before
the incidents here at issue. However, the AJ concluded that the agency
articulated legitimate, nondiscriminatory reasons for its actions,
which complainant did not establish were more likely than not a pretext
to mask unlawful retaliation.
On appeal, complainant contends that the AJ's decision, and the FAD
adopting it, failed to consider the fact that complainant himself filed a
"threat report" against his supervisor following the restroom incident
described above. In his "threat report" to the Postal Inspector,
complainant asserted, consistent with his EEO investigation affidavit,
that his supervisor "burst into the restroom and began screaming at me."
Complainant further asserted that his supervisor then began "waving
his arms around," complainant became alarmed, and his supervisor said
if complainant did not instantly return to the window he would "kick"
complainant's "ass."
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).
In the instant case, the AJ incorrectly reasoned that complainant could
only establish a prima facie case of race discrimination if he identified
comparator employees outside his protected class who were treated more
favorably than he was treated (see AJ Findings and Conclusions at 10).
While comparative evidence is usually used to establish disparate
treatment, complainant need only set forth some evidence of acts from
which, if otherwise unexplained, an inference of discrimination can be
drawn. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
After a careful review of the record, we find that the AJ erred in
concluding that complainant had failed to establish a prima facie case
of race discrimination, and in concluding that there was no genuine
issue of material fact in this case with respect to complainant's race
discrimination or retaliation claims. In finding no discrimination, the AJ
relied on the representation of complainant's supervisor that the letter
of warning was issued because complainant left his post without advising
his supervisor, and became verbally abusive. This finding of fact
entailed a credibility determination, inasmuch as complainant contends
that it was his supervisor who provoked their altercation by becoming
verbally abusive toward complainant and unreasonably ordering him back to
his post before he was finished using the restroom. The record contains
statements from co-workers asserting that clerks were not required to ask
permission before leaving the counter to look for a package. See, e.g.,
Record of Investigation (ROI) at 55. Complainant contends that he was
looking for a customer's package in accordance with standard procedure,
and was only in the restroom for 45 seconds. ROI at 31. The AJ relies
on the fact that complainant concedes he called his supervisor a "moron,"
but does not address the fact that the same transcript of investigative
interview reveals that complainant also contends his supervisor called
him a racially derogatory name. ROI at 31. Moreover, the record reveals
that complainant engaged in protected EEO activity on his own behalf
and on behalf of others, in the time period immediately preceding this
event, and that at least some of this EEO activity directly involved
the supervisor who subsequently disciplined complainant.
Similarly, with respect to complainant's contention that abolishment of
his bid was retaliatory, and that employees junior to him were permitted
to remain at the Ybor City facility whereas he was transferred, the AJ
concluded that the abolishment of complainant's bid was pursuant to an
efficiency audit ("Function Four Audit Review") which was commenced
prior to the events in question. The record reveals that while the
audit was previously conducted, the audit did not recommend which
specific bids to abolish. In ruling that complainant's bid was
abolished based on the audit rather than for retaliatory reasons,
the AJ engaged in a credibility determination, crediting the Customer
Services Manager's affidavit testimony that "[t]he decision made to cut
hours was strictly professional and not personal," ROI at 17. The AJ
also credited management's explanation regarding why a part-time employee
with no prior EEO activity was trained for and retained in a new part-time
position at the Ybor City facility even though his bid was also abolished.
Accordingly, we must conclude that summary judgment was inappropriate
because there are disputed issues of material fact. In so ruling,
we reach no conclusion on the merits of the instant claims, but rather
only find that a decision should not have been issued without a hearing.
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). In summary, there are simply too many
unresolved issues which require an assessment as to the credibility of
the various management officials, co-workers, and complainant, himself.
Therefore, judgment as a matter of law for the agency was procedurally
improper at this juncture.
Appeal No. 01996303
We further find that the agency correctly concluded that the claim raised
in agency case no. 1H-336-0037-97 is the same as the second claim raised
in agency case no. 4H-335-0164-97, and was therefore properly subject
to dismissal. See 64 Fed. Reg. 37644, 37656 (1999) (to be codified at
29 C.F.R. � 1614.107(a)(1)).
Conclusion
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's final
decision in agency case no. 1H-336-0037-97, but we VACATE the agency's
final decision in agency case no. 4H-335-0164-97, which is REMANDED for
a hearing pursuant to the following ORDER.
ORDER
The complaint in agency case no. 4H-335-0164-97 is remanded to the
Hearings Unit of the appropriate EEOC field office for scheduling of a
hearing in an expeditious manner. 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 (M0300)
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. 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court WITHIN NINETY (90) CALENDAR
DAYS from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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:
July 17, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
1 On 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.