01994321
03-14-1995
Kimberly Bailey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Kimberly Bailey v. United States Postal Service
01994321
January 25, 2002
.
Kimberly Bailey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 01994321
Agency No. 4J-600013697
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) 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., and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleged that she was discriminated against on the bases of
race (Black), sex (female), and disability when she was: (1) denied
reasonable accommodation due to pregnancy; (2) sent home while in a
light duty status; and (3) not allowed to return to work after pregnancy.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a full-time letter carrier, PS-05, at the Melrose Park Post Office,
Melrose Park, Illinois. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on August 20, 1997. At the conclusion of the investigation,
complainant received 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 found that complainant was not a person with a disability within
the meaning of the Rehabilitation Act, because a normal pregnancy is not
a disability under the ADA, pointing out that pregnancy discrimination
is discrimination on the basis of sex. The AJ then found that assuming
complainant could present a prima facie case of sex and race/color
discrimination, the agency presented evidence sufficient to rebut
complainant's circumstantial case. The AJ emphasized that the agency
sent home all light duty employees, retaining only Employee D, who
first requested light duty, and that this action was taken pursuant to
a pre-existing memorandum of understanding with the union. Further,
the AJ found that it was uncontested that light duty employees were
called back to work in the order in which each had requested light duty.
The AJ additionally found that it was uncontested that attempts were
made to recall complainant, but that both the agency and the union were
unable to contact her. The AJ then found that complainant provided no
substantive, probative evidence of pretext.
On appeal, complainant argues that the Postmaster repeatedly made direct
references to the complainant's pregnancy in connection with the actions
challenged in the complainant's complaint. For example, complainant
asserts that the Postmaster directly advised when he sent complainant
home on non-duty status and denied her light duty, he was doing so because
of her pregnancy. Finally, complainant indicates that she had set forth
evidence that she was not called back to work after her pregnancy, while
a nonpregnant co-worker was sent both certified and express mail advising
the co-worker to return to work. Complainant does not take issue with the
AJ's analysis with regard to disability discrimination and pregnancy.<2>
ANALYSIS AND FINDINGS
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). An issue of 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).
We conclude that if the evidence of complainant is believed and all
justifiable inferences are drawn in complainant's favor, a reasonable fact
finder could find in favor of complainant. Accordingly, we find that
there are genuine issues of material fact in dispute, and that summary
judgment in favor of the agency was inappropriate. Our analysis follows.
In granting summary judgment in the agency's favor, the AJ examined
complainant's claims under the tripartite analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Under the
tripartite analysis, a complainant must first establish a prima facie case
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
reason was a factor in the adverse employment action. McDonnell Douglas,
411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Next, the agency must articulate a legitimate, nondiscriminatory reason
for its action(s). Texas Department of Community Affairs v. Burdine, 450
U.S. 248 (1981). After the agency has offered the reason for its action,
the burden returns to the complainant to demonstrate, by a preponderance
of the evidence, that the agency's reason was pretextual, that is, it was
not the true reason or the action was influenced by legally impermissible
criteria. Burdine, 450 U.S. at 253; St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993). The FAD concurred with the AJ's decision.
The Commission finds that the AJ erred in examining complainant's
claims under the McDonnell Douglas tripartite analysis, because the
complainant presented direct evidence of discrimination. The U.S. Supreme
Court has held that where the complainant presents direct evidence of
discrimination, use of the McDonnell Douglas test is inappropriate.
See McDonnell Douglas; Trans World Air Lines, Inc. v. Thurston, 469
U.S. 111, 121 (1985). Instead, a mixed motive analysis is appropriate,
where there is direct evidence that discrimination was a motivating factor
in the relevant employment decision. See Price Waterhouse v. Hopkins, 490
U.S. 228 (1989). �Direct evidence� may be any written or verbal policy
or statement made by an employer that on its face demonstrates a bias
against a protected group and is linked to the adverse action in question.
See EEOC Revised Enforcement Guidance on Recent Developments in Disparate
Treatment Theory, N-915.002 at Part III.A, 6 (July 14, 1992) (Guidance).
A link between the evidence of bias and the challenged employment can be
shown if the biased statements were made by the decision maker or one
who was involved in the decision, at or around the time the decision
was made, even if the biased remarks were not specifically related to
the particular employment decision at issue. See id., n. 8.
In the case at hand, complainant alleged in her affidavit, together with
the statement of facts in her prehearing submission, that her supervisor,
the Postmaster, repeatedly made direct references to her pregnancy in
connection with the actions challenged in the complaint. For example,
complainant asserted that the Postmaster directly advised when he sent
her home on non-duty status and denied her light duty that he was doing
so because of her pregnancy. See Complainant's Prehearing Submission,
at � A Statement of Facts, at 1. Of equal significance, complainant
identified three witnesses (Employee W (carrier), Employee V (carrier),
and Employee J (carrier), who assertedly heard the Postmaster state
the reason complainant was not called back to work was her pregnancy,
allegedly adding that �if they get pregnant they are no use to the
U.S. Postal Service.� See Complainant's Prehearing Submission, at � A
Statement of Facts, at 1, 2.<3> The asserted statements were directly
related to the particular employment decisions. This case, therefore,
involves direct evidence of sex discrimination. Once a conclusion
is drawn that an impermissible factor played a motivating part in an
employment decision, the burden shifts to the employer to prove that
it would have made the same decision even if it had not considered the
impermissible factor. See Price Waterhouse, 490 U.S. at 249, 258.
In addition, we note that prior to the Civil Rights Act of 1991 (CRA),
which became effective on November 21, 1991, an employer could avoid
liability in a mixed motive case if it could show that it would have made
the same decision even absent the unlawful factor. See Price Waterhouse,
490 U.S. at 228. The CRA effectively overruled this holding, adding
Section 703(m) to Title VII. This section makes clear that a violation
of Title VII is established when a complaining party demonstrates that
�race, color, religion, sex, or national origin was a motivating factor
for any employment practice, even though other factors also motivated
the practice.� 42 U.S.C. 2000e-2(m). Regardless of whether the agency
is able to establish that it would have made the same decision even
absent the unlawful discrimination, the complainant, while not eligible
to receive the full range of available remedies, may be entitled to
declaratory relief, injunctive relief, attorney's fees and costs.
See Guidance, Part III.C., at 18-20.
The AJ found that the agency stated legitimate nondiscriminatory
bases for its actions and the sequence of events. The AJ noted that
the agency presented uncontroverted evidence that, under the terms of
the local union agreement, only one light duty position was required,
and that it was to be awarded to employees requesting light duty on
a first come, first served basis. As pertinent, the record shows that
there were five requests for light duty work, including from complainant,
Employee D (August 19, 1996) Employee C (September 25, 1996), Employee H
(October 7, 1996), and Employee P (January 15, 1996). Although there
is no record of a light duty request form for complainant, complainant
turned in a doctor's note dated December 2, 1996, the approximate date her
light duty began. The note indicated that complainant was five months
pregnant, and that the expected date of confinement was April 4, 1997.
It therefore appears that complainant's request was the fourth request of
the five requests for light duty. Complainant was placed on light duty
�until further Notice� by the doctor. The AJ found that when complainant
was placed off duty, she was in light duty status due to pregnancy.
The Postmaster explained that due to declining productivity, he was going
to have to start enforcing the local agreement terms. He notified the
light duty carriers and told complainant only one person could receive
eight hours of work. Accordingly, on January 14, 1997, complainant
was told that, effective January 17, 1997, she was being placed off
duty by the Postmaster. She was advised to remain home until called to
report back to work. On January 17, complainant was ordered off duty
in non-pay status.
Employee D had the first light duty request and was given the one
temporary light duty assignment pursuant to the terms of the local
agreement. Employee G had the second request for light duty, and she
returned to work on January 18, 1997, when Employee D returned to full
duty. Employee H had the third request for light duty. She worked on
January 21, 1997, and then returned to full duty approximately February
24, 1997.
It appears that, as of approximately February 24, 1997, it was
complainant's turn for temporary light duty. The AJ found that the
agency's management and the union steward tried unsuccessfully to
contact complainant to return to work. The union steward purportedly
asked carriers who were friends of complainant to contact complainant.
The agency indicated that it attempted to reach complainant prior to
February 24, 1997, in late March 1997, July 25, 1997, July 29, 1997,
and August 12, 1997. Apparently, none of the attempts was successful.
However, complainant argued that the agency should have used express mail
or other means to reach her. Complainant further submits on appeal that
the agency never disputed that complainant was sent no written notice,
certified, express or even ordinary mail. Complainant thus argued that
Employee P (the fifth requestor for light duty) received an express or
certified mail letter advising her to return to work. AJ Decision at 10.
It also appears that the AJ gave weight to a letter dated March 11, 1997,
from the agency addressed to complainant, informing pregnant employees,
inter alia, that statements providing physician's recommendations must
be furnished every thirty days and that paid leave for accrued annual
and sick leave would be granted on request. There is no indication that
complainant received the letter, and, in any event, it would seem that any
duty under the letter would not accrue prior to the date of the March 11,
1997, letter. Moreover, the issue in the case before the Commission is
not one of leave, but of assignment to light duty. With respect to the
assignment of light duty, the AJ found that complainant was advised
by the agency to remain home until called to report back to work.
AJ Decision at 7. This would suggest that complainant had no duty to
call the agency regarding her availability.
Employee P made the fifth request for light duty. It appears that she
returned to work full duty on or about March 27, 1997.
Complainant was released to return to work by her physician in April 1997.
Complainant indicated that she mailed her doctor's release letter
to the Postmaster, but he never acknowledged receipt of the letter.
Complainant's Affidavit, Investigation File (Affidavit A). By letter
posted August 6, 1997, complainant notified the agency that she was
available to return to work. By letter dated August 12, 1997, Supervisor
M notified complainant that the agency had received her certified letter
regarding her availability to return to work and requested that she
contact him to schedule a return to duty and requested that she contact
him to schedule a return to duty examination. As of the date of her
complaint, August 19, 1997, complainant still had not returned to work.
Accordingly, the Commission finds that if the evidence of complainant
is believed and all justifiable inferences are drawn in complainant's
favor, a reasonable fact finder could find in favor of complainant that
she was unlawfully discriminated against, during the period covered by
her complaint.
Finally, 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(d) and (e). �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).
Therefore, judgment as a matter of law for the agency should not have
been granted.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission VACATES 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 Chicago 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
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 Discrimination based on pregnancy is a form of discrimination based on
sex, and therefore violates Title VII. Appendix to 29 C.F.R. Part 1604,
Questions and Answers on the Pregnancy Discrimination Act. See also EEOC
Compliance Manual on Definition of the Term �Disability�, No. 915.002 at
3 n.10 (March 14, 1995) (Pregnancy is not a �disability� for purposes
of the ADA, and that allegations of employment discrimination based on
pregnancy are covered by Title VII).
3 With respect to Employee W, there is confusion about the identity of
that individual. Compare Appeal at 3 n.3 with Prehearing Submission at 3.