01995378
09-14-2000
Kedra Richards, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kedra Richards v. United States Postal Service
01995378.
September 14, 2000
.
Kedra Richards,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995378
Agency No. 1C-151-0121-97
Hearing No. 170-98-8306X
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 (Title VII), as
amended, 42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleges she was discriminated
against on the bases of race (African American), color (black), sex
(female) and reprisal (prior EEO activity) when the complainant received
a letter informing her of the expiration of her transitional appointment,
effective June 24, 1997, and she was not reappointed.
For the following reasons, we VACATE and REMAND the agency's final
decision.
The record reveals that during the relevant time, Complainant was
employed for five years as a Casual or Transitional Distribution Clerk
at the agency's Pittsburgh Processing and Distribution Center (PDC).
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint on September 5,
1997. 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 determined that complainant failed to present a prima facie case
of race, color or sex discrimination. In addition, the AJ found that
while a prima facie case of reprisal was established, the agency's
legitimate non-discriminatory reason for its employment decision was
not rebutted by complainant. 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 record reveals the following: Complainant was appointed either as a
Casual or Transitional Distribution Clerk for specific term appointments
over five years. Her latest appointment was scheduled to expire on
June 24, 1997. In compliance with a collective bargaining agreement
requirement that all transitional employees be phased out by November
30, 1997, complainant was separated from the agency at the end of her
appointment. The responsible official for complainant's separation was
a supervisor on Tour 1 (RMO) (White, female, prior EEO activity unknown).
The record reflects that a Black male transitional clerk and complainant
were terminated at the expiration of their appointments in June, 1997
and neither was reappointed. In addition, a White male transitional
clerk and a Black male transitional clerk in complainant's section were
terminated prior to the expiration of their appointments, but reappointed
as casual clerks. The transitional employees retained by the agency in
June, 1997, included a Black male, two Black females, a While male and
a White female.
Complainant argues that she was separated from the agency in June, 1997
because of her race, color, sex and prior EEO activity. In support of
her allegations, complainant asserts that RMO treated Caucasians more
favorably than African Americans.<2> Also complainant argues that she
was treated differently from a similarly situated White employee (C1)
(no prior EEO activity) who was excused from overtime, and permitted
to choose certain layoff days to accommodate her child care needs.<3>
Complainant also argues that she was treated less favorably than
two White male employees (C2 and C3) (no prior EEO activity) who were
permitted special layoff days to accommodate their school schedules.<4>
Complainant also argues that around the same time that she was separated
from the agency, a similarly situated White male (no prior EEO activity)
employee's (C4) transitional appointment was terminated, but he was
reappointed as a casual clerk rather than being separated from the agency.
Lastly, complainant argues that before RMO was involved in her schedule,
management had no problem accommodating her scheduling needs.<5>
In response to complainant's allegations, RMO affirmed that she did
not schedule C2 off to attend school, but noted that C2 demonstrated
good work performance. In addition, RMO denied accommodating C3's
layoff days. RMO also affirmed that C1 was never excused from overtime.
RMO affirmed that C4, who was originally reduced to a casual employee,
was promoted to a transitional employee when a position became available
because of his keying ability and good performance as a casual employee.
In addition, RMO stated that complainant was a poor performer and that she
left the workroom floor on one occasion without authorization. Moreover,
RMO affirmed that none of complainant's supervisors voted to retain her.
Statements from complainant's supervisors indicate that they had no
input into whether complainant should be reappointed. In addition, one
supervisor found complainant's work �excellent� and another described
complainant as doing a �pretty good job.�
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 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 administrative tribunal'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).
After a careful review of the record, we find that the AJ erred when he
concluded that there was no genuine issue of material fact in this case.
First, we find ample evidence in the record to support a prima facie
case of race, color, and sex discrimination, as well as reprisal.
Complainant was treated less favorably than a similarly situated
individual (C4) who fell outside complainant's protected classes.
In addition, RMO was never asked by the investigator whether she was
aware of complainant's prior EEO activity, and accordingly, there is
no denial of such knowledge in the record. Also, as the AJ noted,
since complainant's prior EEO activity took place during the years
1995 through 1998 and involved some of the same management officials
who provided affidavits in this matter, it is reasonable to assume that
complainant may be able to establish (at the hearing) that RMO was aware
of complainant's EEO activity. Lastly, we note that the agency failed
to articulate a clear legitimate explanation for its employment action.
While RMO stated that complainant was a poor performer, it is not clear
if this is the basis for her separation. Moreover, if this is the basis
for the separation, we find sufficient conflicting evidence on this point
to warrant a hearing. Specifically, other agency witnesses affirmed that
complainant's work performance was �excellent� and �good.� In addition,
while RMO asserted that complainant's supervisors did not vote to keep
complainant, two of her supervisors denied having any input on whether
or not to keep complainant. The seemingly inconsistency of the agency
witnesses support the need for a hearing in this matter. Lastly, RMO
fails to explain why C4, rather than complainant, was reappointed to a
casual clerk position, in June, 1994.
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). 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, herself.
Therefore, judgment as a matter of law for the agency should not have
been granted.
Therefore, after a careful review of the record and evidence not
specifically discussed in this decision, the Commission REVERSES the
agency's final action and REMANDS the matter to the Hearings Unit of
the Cleveland District Office in accordance with this decision and the
ORDER below.
ORDER
The complaint is remanded to the Hearings Unit of the Cleveland
District Office for scheduling of a hearing in an expeditious manner.
The agency is directed to submit a copy of the complaint file to the
Cleveland District Office 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 (K0800)
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 (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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
September 14, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Complainant proffered the name of one witness who could support her
allegation of discriminatory animus.
3 Complainant argues that she was required to work overtime.
4 Complainant argues that RMO required her layoff days to fall on
Saturdays, without exception.
5 During the entire tenure of complainant's employment with the agency,
she also worked a full-time day job at a local bank. The job with
the bank made it difficult for complainant to arrive at the agency at
the same time other transitional clerks arrived (i.e., 1:15 p.m.).
Accordingly, prior to the period at issue herein when complainant's
schedule purportedly changed, she alleges that she was permitted to arrive
at the agency around 4:30 p.m. In addition, complainant argues that prior
to the period at issue herein, she rarely was required to work overtime.