01973341
05-12-2000
Reginald D. Clark, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western) Agency.
Reginald D. Clark v. United States Postal Service
01973341
May 12, 2000
Reginald D. Clark, )
Complainant, )
) Appeal No. 01973341
v. ) Agency No. 4E-890-1057-94;4E-890-1090-95;
) 4E-890-1051-96
) Hearing No. 340-96-2351X;340-96-3724X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western) )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal from a final agency decision
concerning his complaint 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. and the Rehabilitation Act of 1973 as
amended, 29 U.S.C. �791. <1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
Complainant alleges he was discriminated against on the bases of race
(Black), reprisal (prior EEO activity), and his mental disability
(Unipolar/Major Mood Disorder/ Chronic Depression) when:
He was issued a letter of removal on January 13, 1994;
He was placed on administrative leave on April 20, 1995;
He was reassigned to the Main Post Office on April 24, 1995;
He was issued a letter of removal for being absent without leave (AWOL)
on June 30, 1995;
His bid position was posted for applications on July 21, 1995; and
He was not allowed to bid for annual leave on November 18, 1995.
For the following reasons, we VACATE and REMAND the agency's final
agency decision.
ISSUE PRESENTED
The issue to be decided is whether the Administrative Judge's recommended
decision granting summary judgment was proper.
Background
The record reveals that during the relevant time, Complainant was
employed as a Distribution/Window Clerk PS-05 at the agency's Sparks,
Nevada ,Vista Post Office facility.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed formal complaints on May 16, 1994,
September 15, 1995 and February 23, 1996. 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 concluded that complainant failed to establish a prima facie
case of race discrimination, on any of the issues because he failed to
point to similarly situated non-Black employees who had entered a Last
Chance Agreement(Agreement) but were treated differently than he was.
The AJ determined that there were no facts which raised an inference
of discrimination regarding the complainant's 1994 termination after
he violated the parties' Last Chance Agreement . The parties' entered
the Agreement after the complainant had been terminated in 1991and
then reinstated in 1992 for failing to submit acceptable medical
documentation<2> for his absence from work.
The AJ also concluded that the complainant established he was a qualified
individual with a disability but that he failed to establish a prima
facie case of disability discrimination on any of the issues. The AJ
determined that the complainant, in general, failed to allege that he
was denied a reasonable accommodation and therefore, there was no genuine
issue whether he was denied a reasonable accommodation.
The AJ determined that the complainant established a prima facie case
of reprisal in being placed on administrative leave and then reassigned
in 1995, when his position was re-posted and when he was not allowed
to bid for annual leave. All of these actions took place during the
agency's EEO investigation of his 1994 termination and, in the AJ's view,
established an inference of reprisal. Even so, the AJ was persuaded that
the agency placed the complainant on administrative leave and reassigned
him because he was a prime suspect in an investigation of missing funds
and none of the other employees involved were. She also concluded that
the agency had shown it re-posted his job and disallowed his annual
leave bids because he had been terminated. The agency argued that the
complainant's job was a necessary position and had to be filled even if
he was eventually reinstated at some later date. The complainant failed
to assert any facts which established these reasons were pretextual.
The AJ also concluded that the complainant established a prima facie case
of reprisal on the issue of his June 1995 termination. She decided,
however, that the agency established a legitimate non-discriminatory
reason for his termination because the complainant again failed to provide
adequate medical documentation to support his absence. The AJ further
found that the complainant failed to state facts which would establish
the agency's reasons were a pretext for discrimination.
The agency's final decision adopted the AJ's decision.
Complainant raises no new contentions on appeal, but he had opposed
summary judgment on the grounds that he had been given no opportunity
to take discovery and to establish how other employees had been treated
under similar circumstances. He further argued that he was given no
chance to conduct cross-examination of agency witnesses which would
have established race discrimination. The complainant contended that
he was not allowed to demonstrate at a hearing that the agency failed to
make a reasonable accommodation for his depression and that the agency's
mistreatment of him only exacerbated his condition. He contended that
he was treated differently than others because of his disability.
The agency stands on the record and requests that we affirm its final
decision adopting the AJ's decision.
ANALYSIS AND CONCLUSIONS
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).
After a careful review of the record, we find that the AJ erred when she
concluded that there was no genuine issue of material fact on any of the
issues and that summary judgment for the agency was appropriate. First of
all, the AJ determined that the complainant was a qualified individual
with a disability without giving an explanation of how she concluded
this. From the record we discerned that the complainant suffered
from chronic depression, major mood disorder and a sleep disorder.
We find insufficient the AJ's findings with respect to how these
conditions substantially limited any other major life activities. See,
EEOC Enforcement Guidance: The Americans with Disabilities Act and
Psychiatric Disabilities, p. 5 (March 25, 1997). Without a more complete
record, a proper analysis of the complainant's disability cannot be done.
We disagree with the AJ that the complainant failed to establish a prima
facie case of race discrimination on any of the issues. As discussed
further below, the complainant was the only black employee in both
units in which he worked before and after his reassignment. This is
a sufficient basis to trigger a closer examination of the basis for
decisions made with regard to the complainant.
In addition, we identified several issues of fact which needed to be
resolved at a hearing. With respect to the complainant's claim of
disability discrimination, it was apparent from the record that the
AJ failed to even consider whether the complainant had been given a
reasonable accommodation. Given her finding that the complainant was a
qualified individual with a disability, this was required as part of the
analysis. It was error for the AJ to conclude that since the complainant
did not raise the issue of a reasonable accommodation there was no need
to consider it. It was also clear from the record the agency knew the
complainant suffered from several conditions, and that at least one of his
conditions affected his ability to be on time. The complainant's medical
conditions were at the heart of the complainant's first termination in
1991 and were related to his termination in 1995 because he allegedly
failed to provide proper medical documentation for his absence from work.
Thus, there were two questions to be resolved by the AJ - 1) what was a
reasonable accommodation for the complainant's sleep disorder and for
any other disabilities which affected his ability to perform his job;
2) did the accommodations pose an undue hardship on the agency? See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans With Disabilities Act,(Guidance) p. 51. (March 1, 1999).
The record in this case reflects that the employer was more strict in
granting leave to the complainant when it could have considered a more
liberal leave policy as an accommodation to the complainant's various
medical conditions. See Guidance p. 26.
There was also a question of fact whether the agency subjected the
complainant to disparate treatment by terminating him in 1994 for a leave
infraction as compared to the treatment given to other employees. The
record established that the complainant was the only Black employee in his
unit who was terminated for a leave infraction, which created an inference
of discrimination based on race. Moreover, the agency's claim that the
complainant failed to provide adequate documentation for his absence was
subject to question. There was evidence in the record consisting of two
letters from day care facilities refusing service to the complainant
on the days in question. The agency's contention that they located
three other available day care centers should have been weighed by the
AJ against the fact that the complainant did not have telephone service
or the use of a car. In addition, the AJ did not consider that three
different arbitrators found no just cause for the agency's termination
of the complainant in 1991, 1994 and 1995 for his leave violations and
ordered him to be reinstated. We find that the AJ erred in concluding
these factors did not create questions of credibility and factual issues
to be resolved regarding the complainant's 1994 termination.
We find that there was a question of fact whether the agency's reasons for
placement of the complainant on administrative leave and its reassignment
of him in 1995 were a pretext for discrimination. The complainant,
the only employee involved in the incident who was Black and who had
engaged in previous EEO activity, was also the only one placed on leave,
and displaced from his regular job and work site. Although the agency
argued that the complainant was the prime suspect, the testimony revealed
that the complainant and his supervisor sealed the envelope with the
missing funds together. Thereafter, two additional people handled
the sealed envelope the last of which found the envelope unsealed.
These facts called into question the agency's reasons for targeting the
complainant for reassignment and administrative leave to the exclusion
of the others who also had contact with the missing funds.
In a similar vein, we find there was a question of fact whether the
agency's reasons for terminating the complainant in 1995 was a pretext
for discrimination. The agency stated the complainant was terminated
for failing to provide adequate medical documentation that he was unable
to work, yet the agency accepted similar medical documentation for
the complainant's absences on June 20 and 21, 1995. Furthermore, the
AJ should have resolved whether the supervisor's reasons were credible
in light of the their knowledge of the complainant's chronic medical
conditions and their experiences dealing with it in the past. Finally,
the AJ should have considered the arbitrator's decision in favor of the
complainant on this incident as well as a similar previous incident as
probative of the credibility of the supervisor's explanation.
Lastly, the same questions of fact discussed above apply to the
complainant's claims of reprisal. The record showed that the complainant
filed and resolved an EEO complaint regarding his 1991 termination in
October 1993. Shortly thereafter, the complainant was issued a notice
of termination in January 1994. As the AJ noted, the complainant filed
another EEO complaint surrounding his 1994 termination, which was being
investigated at the time the agency placed him on administrative leave and
reassigned him to the Main Office. Therefore, the complainant established
a prima facie case of reprisal as to the issues of his 1994 and 1995
terminations, his placement on administrative leave and his reassignment.
For the same reasons outlined above, the AJ erred in failing to resolve
questions of fact regarding the agency's non-discriminatory reasons for
its actions and whether they were a pretext for discrimination.
On the issues of the agency's re-posting of the complainant's position and
its refusal to allow him to bid on annual leave in 1996, the investigative
file contains inadequate information outlining the agency's policies
and procedures on such issues. There was some indication that another
terminated employee's duties had been divided among other employees
but because she had engaged in protected EEO activity, the facts lent
support to the complainant's claim of reprisal. We conclude that there
was insufficient information from which to judge the complainant's claims
and that the record should be supplemented on this issue.
Therefore, after a careful review of the record, and arguments and
evidence not specifically discussed in this decision, the Commission
VACATES the agency's final decision and REMANDS the matter to the agency
in accordance with this decision and the ORDER below.
ORDER
The complaint is remanded to the Hearings Unit of the San Francisco
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
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.
The agency will supplement the record to include its written policies and
procedures or collective bargaining agreement provisions which address
re-posting of bid positions pending the resolution of a grievance and
bidding on annual leave. This will be done within 30 days of the agency's
receipt of this order.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
May 12, 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.
The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
2Acceptable medical documentation was defined as that which stated the
nature of the illness, the duration of the illness, signed by a physician
and indicating that the complainant was "incapacitated for work."