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).