0120070505
05-20-2008
Larry D. Almon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Larry D. Almon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120070505
Hearing No. 440-2006-00051X
Agency No. 4J-600-0159-05
DECISION
On October 31, 2006, complainant filed an appeal from the agency's October
2, 2006, final order concerning his equal employment opportunity (EEO)
complaint alleging 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. The appeal is deemed timely and is accepted for the Commission's
de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission VACATES the agency's final order.
BACKGROUND
Complainant began his employment with the agency in 1987. At the time
of events giving rise to this complaint, complainant worked as a letter
carrier at the Bensonville, Illinois Post Office and had been employed
by the agency for eighteen years. In an EEO complaint dated November 4,
2005, complainant alleged that he was discriminated against on the basis
of race (African-American) and in reprisal for prior protected activity
(arising under Title VII) when on July 7, 2005, the agency issued
complainant a notice of removal and terminated him on August 17, 2005.
In an investigative affidavit, complainant stated that the Customer
Service Supervisor observed an incident wherein two non Black co-workers
"accosted" him by nudging and cursing at him. "I told them to leave
me alone while I was working, and that I get off at 5:30," complainant
stated. Complainant contends that he was the victim of an assault and
should not have been terminated.
In an investigative affidavit, the Supervisor of Customer Service
(African-American) stated that she was complainant's "indirect"
supervisor for four and a half years but was unaware of complainant's
previous EEO activity. The supervisor stated that on July 7, 2005,
she witnessed complainant and two co-workers engaging in an abrasive
and threatening argument wherein all three employees yelled and cursed
at each other. The supervisor stated that she tried to diffuse the
situation by ordering all three employees to settle down, but the
employees did not immediately cease their argument. The supervisor
stated that she issued complainant discipline because complainant's
conduct created a threatening and unsafe environment for other employees.
The supervisor stated that complainant's removal was based upon principles
of progressive discipline set forth in the National Agreement. However,
the supervisor stated that "prior to issuing Larry Almon the notice of
removal, I was not aware Larry Almon had live discipline in his file."
The supervisor further stated that she issued the other two employees
seven-day suspensions because the other employees did not have any live
disciplinary actions in their personnel files. The supervisor stated that
the Postmaster concurred with her decision to terminate complainant.
The Postmaster stated that he concurred with the supervisor's
recommendation that complainant be removed. The Postmaster stated
that because of the severity of the incident, and complainant had been
previously issued seven-day and fourteen-day suspensions, the agency
determined that removal was appropriate.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The agency moved for a decision without a hearing,
to which complainant objected. In a decision dated September 27, 2006,
the AJ issued a decision without a hearing, finding no discrimination.
In that decision, the AJ found that complainant failed to provide evidence
that the agency's legitimate, non-discriminatory reasons for its actions
were pretext for unlawful discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ improperly found no
discrimination in a decision without a hearing because the AJ made
impermissible credibility determinations and non-Black employees who
engaged in misconduct were not disciplined to the same extent that Black
employees were disciplined.
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. 29 C.F.R. � 1614.109(g). 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's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. 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. at 255. An 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
After a careful review of the record, we find that the AJ erred when he
concluded that there were no genuine issues of material fact in dispute.
For example, the documentary and testimonial evidence establish that
there is a dispute concerning whether the Customer Service supervisor was
aware of complainant's previous EEO activity. Although the supervisor
stated that she was not aware of complainant's previous EEO activity
and disciplinary record, complainant maintained that the supervisor
asked him about his previous EEO complaint during the processing of
that previous complaint. Moreover, we note that the supervisor stated
that she was complainant's indirect supervisor during the time period
that complainant was suspended by the agency and engaged in previous
EEO activity. Additionally, the supervisor stated that her decision
to terminate complainant was based upon the principles of progressive
discipline, which would have logically included a review of complainant's
disciplinary record. Further, the Postmaster who concurred with the
supervisor's decision to terminate complainant acknowledged that he was
aware of complainant's previous EEO activity because he was a responsible
management official in complainant's previous complaint.
Additionally, there are genuine issues of material fact concerning the
workplace altercation that the agency cited as the basis for complainant's
termination. Complainant stated that two non-Black co-workers initiated
the workplace altercation by cornering and yelling obscenities at him.
The supervisor stated that she witnessed complainant arguing with two
co-workers. However, the supervisor did not indicate if she attempted
to determine who initiated the argument or if she procured complainant's
version of the facts before disciplining him. Without a hearing, there
was no opportunity for potential witnesses to be called to substantiate
complainant's version of the facts.
Moreover, the agency contended that complainant's termination was
partly based on the fact that he had previously been issued seven-day
and fourteen-day suspensions. However, the record reveals that the
suspensions were based upon incidents wherein complainant allegedly
walked across a lawn and was seven minutes late returning from his
delivery route. In light of complainant's eighteen years of service to
the agency, complainant's claim that the incident was initiated by his
co-workers, and the seemingly minor infractions that served as bases
for complainant's prior discipline, we conclude that credibility is at
issue at this case.
Therefore, there is a need for a hearing to assess the credibility of the
management officials involved in the decision to terminate complainant,
as well as the credibility of complainant. Consequently, we find that
the AJ's issuance of a decision without a hearing was inappropriate in
this case.
CONCLUSION
The Commission VACATES the agency's final order and REMANDS this matter
to the agency for further processing 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 and a copy of the complaint file 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, an AJ shall process 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 (K0408)
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 (M0408)
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 (R0408)
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 (Z0408)
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
__May 20, 2008________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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