John T. King, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 17, 2000
01986497and01996303 (E.E.O.C. Jul. 17, 2000)

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.