Ronald Foy, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W Areas), Agency.

Equal Employment Opportunity CommissionOct 11, 2000
01a00512 (E.E.O.C. Oct. 11, 2000)

01a00512

10-11-2000

Ronald Foy, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W Areas), Agency.


Ronald Foy v. United States Postal Service

01A00512

October 11, 2000

.

Ronald Foy,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(S.E./S.W Areas),

Agency.

Appeal No. 01A00512

Agency No. 4G-770-0505-97

Hearing No. 330-99-8136X

DECISION

Complainant timely initiated an appeal from a final agency action

concerning his complaint of unlawful employment discrimination in

violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq., and 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 he was discriminated against on the bases of race (White) and

physical disability (traumatic brain trauma), when: (1) on April 30,

1997, he saw his co-worker carrying trays over his shoulder, casing mail,

doing extended bending, even though complainant needed to bring in monthly

updates; and (2) the co-worker works in a modified clerk position and

has been promoted to 204B, but has no restrictions on file. For the

following reasons, we REVERSE and REMAND the agency's final decision.

The record reveals that during the relevant time, Complainant was

employed as a Carrier at the agency's North Shepard Station, Houston,

Texas facility. Believing he was a victim of discrimination, complainant

sought EEO counseling and, subsequently filed a formal complaint on

June 23, 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 noted in her decision that the complainant has previously been

found by the AJ to be a qualified individual with a disability.<2>

In the instant case, the AJ also concluded that complainant failed to

establish a prima facie case of discrimination, noting that the co-worker

cited was not a proper comparative employee, since the co-worker was in

a modified clerk position and complainant was not. The AJ then found

complainant failed to prove that the agency's reasons for its actions

were a pretext for discrimination.

On September 23, 1999, the agency issued a final decision adopting the

AJ's decision. On appeal, complainant contends, among other things, that

the co-worker violates his medical restrictions despite his assignment

to a Modified Clerk position. Complainant argues that the comparison

employee is a proper employee. Complainant also contends that the agency

denied him an accommodation, denied him work he was capable of performing,

and constantly requires him to supply medical documentation.

The agency stands on the record and requests that we affirm its final

decision adopting the AJ's decision.

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.

In that regard, we find that the AJ erred when she concluded that

there was no genuine issue of material fact in this case. In finding

no discrimination, the AJ relied on the representations of management

officials as provided in their affidavits. In this case, one management

official simply stated that he was on a detail at the time of the

question, and did not answer the remaining questions. The other

management official disputes complainant's contentions.

After a careful review of the limited record before us, we find there

was insufficient evidence in the record to determine there were no

material facts in dispute. The complaint before us was drafted poorly,

and as such, the agency should have requested further information from

complainant as to the specific nature of his allegations. It appears

from the record that complainant is arguing that his disability is not

accommodated, and he is denied work he is capable of performing, whereas

another employee was provided an accommodation. Missing from the AJ's

analysis, however, is an examination into complainant's accommodation

issues.

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 light of the agency's failure to properly frame complainant's

allegations, as well as the prior finding of disability discrimination,

we find that complainant should be given the opportunity to supplement

the record by clarifying his allegations. We believe the most equitable

forum for complainant to accomplish this is in the form of a hearing.

This will allow complainant to properly articulate his allegations,

including his allegation that he was denied an accommodation of his

disability, so that a thorough decision can be issued.

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 REVERSES the

agency's final action 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 appropriate EEOC

field 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.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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 (M0900)

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

October 11, 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.

2The record reveals that on October 12, 1994, complainant filed a prior

EEO complaint alleging discrimination on the bases of race, sex and

physical disability when he was not permitted to work an eight hour day,

and he was denied a steering wheel knob as an accommodation for his

partial paralysis. The AJ issued a RD finding that complainant was

discriminated against on the basis of physical disability when he was

denied an accommodation. Complainant appealed the agency's rejection

of the AJ's RD. On May 22, 1998, the Office of Federal Operations

issued a decision that agreed with the AJ and found that complainant was

discriminated against on the basis of disability when he was denied a

steering wheel knob that would accommodate his disability and allow him

to work an eight hour day. See Foy v. USPS, EEOC Appeal No. 01964347

(May 22, 1998).