01A13622
08-19-2002
Pamela S. Cruz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Pamela S. Cruz v. United States Postal Service
01A13622
August 19, 2002
.
Pamela S. Cruz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01A13622
Agency No. 1-H-328-0007-00
Hearing No. 150-AO-8617X
DECISION
Complainant timely initiated this appeal from the 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged in her complaint that she had been discriminated against by
the agency on the bases of her national origin (Hispanic), sex, and age
(forty-three years old at the time of the agency actions at issue) when
(1) on October 18, 1999, her supervisor (S1) requested that she provide
medical documentation when she informed him of her need to go home due
to illness, and (2) she was accused of making a bomb threat and was held
at work in order to meet with Postal Inspectors regarding that threat.<1>
At the conclusion of the agency's investigation into her complaint,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). The assigned AJ provided notice to the parties that she was
considering issuing a decision without a hearing. When neither party
responded to the notice, the AJ issued her decision without a hearing,
finding no discrimination. In her decision, the AJ concluded that, upon
her review of the evidence in the investigative file, there existed no
genuine issue of material fact, and that entry of a decision without a
hearing would be appropriate in the case.
As for the substance of complainant's claims, the AJ found that
complainant failed to establish a prima facie case of sex or national
origin discrimination. The AJ stated that this was because complainant
had failed to show that she was an aggrieved party�that she had suffered
harm relating to a term, condition, or privilege of her employment.
The AJ added that, even assuming for the sake of argument that complainant
had in fact suffered a harm or injury relating to a term, condition,
or privilege of her employment, she nevertheless failed to present
evidence of any similarly-situated individuals who were treated more
favorably under similar circumstances.<2> The AJ concluded that she
found no evidence from which to infer discriminatory animus on the part
of the agency for its actions. The agency's FAD fully implemented
the AJ's decision, extending the AJ's finding of no discrimination
to complainant's age discrimination claim as well as her race and sex
discrimination claims. This appeal followed.
After a careful review of the record on appeal, we find that the issuance
of a decision without a hearing was inappropriate in this case. 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 United States 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 Corp. 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, summary judgment
is not appropriate. In the context of an administrative proceeding,
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 (Feb. 24,
1995). We further 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.� EEOC Management
Directive 110, Chapter 7, page 7-1 (Nov. 9, 1999); see also 29 C.F.R. �
1614.109(e) (stating that �[h]earings are part of the investigative
process�). �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.� Bang v. United States Postal Serv., EEOC Appeal No. 01961575
(Mar. 26, 1998).
Complainant claims that the agency actions at issue were part of the
ongoing sexual harassment she had been subjected to by her supervisor
(S1) over a period of years. Included in the record in support of that
claim, along with complainant's lengthy descriptions of her version
of the events in question, are documents summarizing interviews with
several of complainant's coworkers, including some management officials,
which support complainant's allegation that she, and several other female
employees in the facility, had previously been subjected to sexually
harassing behavior by S1. These include summaries of statements by
named individuals who state that S1 has previously engaged in retaliatory
behavior against other female employees when they declined or otherwise
communicated their lack of interest in his advances. The record also
indicates that several named management officials have stated that they
had been contacted by complainant with complaints regarding S1's alleged
sexually harassing behavior toward her. The record further includes,
despite the AJ's statement to the contrary, evidence that a comparison
employee (race unknown, female, forty-two years old at the time of
the agency actions at issue) was allowed to take sick leave on the day
of the events in question, but does not include specific information
regarding the circumstances surrounding the grant of that leave request.
Accordingly, we find that there exists sufficient dispute over the
material fact of S1's motivation in the complained-of actions to warrant
a hearing on complainant's claims.
We also disagree with the AJ's finding that complainant had failed
to allege that she was an aggrieved party sufficient to state a claim
of discrimination. The AJ found that, as to claim (1), �complainant
affirmatively chose to remain at work in spite of her �illness,'�
and therefore did not lose any time or pay as a result of S1's
alleged actions. As for claim (2), the AJ found that the record was
�devoid of any evidence to support an inference that the complainant
suffered any harm as a result of being questioned,� and that there
was no indication that any discipline or other legal consequences were
visited upon complainant. However, complainant's allegation is that the
complained-of agency actions were acts of sexual harassment, in that
they constituted retaliation for her refusing to respond to his previous
sexual advances in the workplace. Furthermore, complainant's claim (1)
constitutes an allegation of a de facto denial by the agency of her sick
leave request. Accordingly, we find that she has sufficiently alleged
that she suffered a harm in the terms and conditions of her employment
to state a claim of sexual harassment and disparate treatment.
Therefore, we find that the AJ's issuance of a decision without a hearing
was inappropriate. It is the decision of the Commission to VACATE the
agency's FAD and REMAND 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 EEOC's Miami District
Office a 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 Miami 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 (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, 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
August 19, 2002
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 S1 was also alleged by complainant to have been involved with the
agency actions complained of in claim (2).
2 In cases alleging disparate discriminatory treatment by an
agency, complainant must establish a prima facie case by proving by
a preponderance of the evidence that he or she suffered an unfavorable
employment action by the agency under circumstances which give rise to an
inference of unlawful discrimination. Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). We have repeatedly emphasized
in our decisions, however, that it is not necessary for complainant to
rely strictly on comparative evidence in order to establish an inference
of discriminatory motivation necessary to support a prima facie case.
See Evans v. United States Postal Serv., EEOC Appeal No. 01986607
(Sept. 12, 2001); see also O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on O'Connor
v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4
(Sept. 18, 1996). The AJ's narrow interpretation of complainant's burden
was, therefore, incorrect as a matter of law.