0120073731
10-15-2009
Ruth Ebner-Cupples, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ruth Ebner-Cupples,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073731
Hearing Nos. 280-2006-00071X, 560-2007-00009X
Agency Nos. 4J-630-0123-05, 1J-631-0023-06
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 2, 2007, final order concerning her
equal employment opportunity (EEO) complaint alleging 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
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
Complainant alleged that the agency discriminated against her on the
bases of age (51), disability (lower back), and in reprisal for prior
EEO activity when she was not hired in August 2005 and February 2006.
Following an investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). On July 3, 2007, the AJ issued a decision
without a hearing, finding that the agency did not discriminate against
complainant.
The agency explained that hiring for bargaining unit positions takes
place from a register of applicants, ranked by their scores on an agency
exam; the agency proceeds from the highest score down, until it fills
the vacant jobs. Hiring for management-level positions are based on an
applicant's qualifications measured against specific job requirements.
The record shows that complainant had worked previously for the agency,
resigning in 1980 after six years of service, and again in April 1996,
following 17 months of service. For a period of a few months in 1980,
complainant served as an acting Postmaster in Glen Carbon, Illinois.
In regard to the February 2006 non-hire, complainant applied for a
management-level job that required at least one year of service at the
management level. The AJ found that she did not meet the qualifications
of the job, because she did not have one year of management-level service.
As to the August 2005 non-hire, the agency explained that this group of
bargaining- unit jobs were filled from the hiring register, and it did
not reach complainant's score before it filled all available jobs.1
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(Providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. At Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g) (2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
In the instant case, we find that the prerequisites for a decision without
a hearing have been met. We further find that the AJ properly issued
a decision without a hearing, because no genuine issue of material fact
exists to be resolved at a hearing.
Complainant's Claim
The analysis of claims claiming disparate treatment is patterned after the
three-step scheme announced in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). Assuming, arguendo, that complainant established
a prima facie case; we find that the agency carried its burden to
articulate a legitimate, nondiscriminatory reason for its actions.
At this point, the burden of proof returns to complainant, and, to
prevail, she must demonstrate, by a preponderance of the evidence, that
the agency's reason(s) for its action was a pretext for discrimination,
i.e., that the agency's reason was not its real reason and that it
acted on the basis of discriminatory animus. See Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993). The agency met its burden
by explaining that complainant did not meet the minimum qualifications
for the management-level position, and that she was too far down the
register to be hired for the bargaining unit position. Complainant has
not adduced evidence to show that these reasons were merely pretext for
discrimination. For this reason, we agree with the AJ that the agency
did not discriminate against complainant.
Abuse of Process
In her decision, the AJ provided a lengthy and detailed description
of complainant's litigation activity before the federal courts and in
the EEO process, beginning in 1996, after her resignation; none have
been successful. In brief: In September 1996, complainant filed a
formal EEO complaint alleging constructive discharge. The complaint was
dismissed for untimely EEO counseling. Complainant did not appeal that
decision. In 1997, complainant filed a civil action in U.S. District
Court alleging ongoing discrimination from 1980 through 1996. In 1999,
the case was dismissed for failure to exhaust administrative remedies.
Later in 1999, the Eighth Circuit Court of Appeal affirmed. In January
2003, complainant filed a formal EEO complaint regarding denial
of reinstatement, and alleging she was entitled to "unlimited" and
"priority" reinstatement. The AJ assigned to that case granted the
agency's motion for summary judgment; based on the agency's explanation
that complainant was not entitled to priority reinstatement because too
much time had elapsed since complainant's last employment with the agency.
On appeal, the Commission affirmed. Ruth Ebner-Cupples v. United States
Postal Service, EEOC Appeal No. 0120050272 (June 28, 2005). In August
2005, complainant again requested priority reinstatement. The agency
again rejected her request; during this time the agency also rescinded
complainant's ten-point veterans' preference on the ground that it was
unable to verify complainant's military service. In September 2005,
complainant filed a second civil action in U.S. District Court, from the
Commission's decision in EEOC Appeal No. 0120050272. Complainant also
raised claims regarding matters that occurred during her pre-1996 period
of employment. In February 2007, the District Court issued a decision
finding in favor of the agency with regard to the denial of reinstatement,
and finding that the matters involving complainant's pre-1996 employment
were res judicata, because they should have, but had not, been raised
in her earlier civil action.
Returning to the instant matter, the AJ stated:
[C]omplainant has filed tens of thousands of papers before [the prior AJ]
and me on a continual basis since her complaints arrived in this office.
She has repeatedly requested discovery from the agency that is irrelevant
and burdensome and then sought orders to compel from me regarding same.
She has requested information that was previously requested in district
court actions and prior EEO complaints that have been closed. She has
sought discovery of materials already in her possession, as well as
materials relating to prior actions resolved in federal district court.
She has requested information and made claims relating to matters,
such as qui tam actions and whistle-blowing actions that she has been
told are not within the jurisdiction of the EEOC. She has requested
sanctions from me against individuals, such as [the] Assistant United
States Attorney [assigned to her case]. She has raised contentions
against [the U.S. District Court Judges who presided over her civil
actions], and [the prior AJ], the Eighth Circuit Judges, OFO, postal
service attorneys assigned by the agency to defend against her cases,
as well as other attorneys from the United States Attorneys Office.
The AJ characterized complainant's complaints to date as "untimely,
duplicative and meritless.2 Further, a review of complainant's EEO
complaints and federal court pleadings reveals that she continues to
advance the same allegations, and thus her complaints lack specificity
relating to the exact adverse actions she has complained about in her
allegations. Her allegations are mere templates. I emphasize that
the discovery requests from complainant clearly evince intent to create
unnecessary expense for the agency."
The AJ concluded that "complainant's actions in the procedural phases
of this case are indicative of an abuse of the EEO system." She placed
complainant on notice that continuation of such activity will subject her
to sanctions for abuse of the EEO process. See 29 C.F.R. � 1614.107(a)
(9). The AJ warned complainant that, if she continued to assert claims
that she is entitled to a hiring preference or priority based on her
prior employment, her cases will be subject to immediate dismissal under
29 C.F.R. � 1614.107(a)(9) for abuse of the EEO process. The AJ noted
that complainant's prior contentions that she is entitled to a hiring
preference have been rejected.
When the Commission revised its regulations in 1999, it added a new
provision allowing dismissal of complaints where there is a clear
pattern of misuse of the EEO process and re-asserted that it maintains
the inherent power to control and prevent abuse of its processes, orders,
or procedures. 29 C.F.R. � 1614.107(a) (9). This regulation codified
Commission decisions that defined abuse of process as a clear pattern
of misuse of the EEO process for ends other than those for which it was
designed, that is, for a purpose other than the prevention and elimination
of employment discrimination. See Preamble to 29 C.F.R. Part 1614, 64
Fed. Reg. 37644 (July 12, 1999); Buren v. USPS, Request No. 05850299
(November 11, 1985). The Commission has expressed its reluctance to
apply this provision and dismiss complaints for abuse of process because
of the strong policy in favor of preserving complainants' EEO rights
whenever possible. Kleinman v. Postmaster General, Request No. 05940579
(September 22, 1994).
In considering whether a complainant's activity constitutes an abuse of
process, the Commission has stated that an abundance of EEO complaints
alone may not demonstrate an abuse, but "evidence of multiple complaint
filings combined with the subject matter of the complaints (such as
frivolous, similar or identical allegations...and allegations involving
matters previously resolved) may be considered in determining whether
a complainant has engaged in a patter of abuse of the EEO process."
Preamble, supra; see Goatcher v. USPS, Request No. 05950557 (October
18, 1996). A "clear pattern of misuse" requires a showing of (i)
multiple complaint filings; and (ii) allegations that are similar or
identical, lack specificity, or involve matters previously resolved;
or (iii) evidence of circumventing other administrative processes,
retaliating against the agency's in-house administrative processes, or
otherwise overburdening the EEO complaint system.3 See Hooks v. USPS,
Appeal No. 01953852 (November 28, 1995).
In this case, as set out in great detail above, the AJ found that
complainant has filed multiple complaints alleging that she is entitled
to preference in the hiring process, notwithstanding that the fact that
she is not so entitled is res judicata. Further, the AJ found that
complainant filed voluminous amounts of often duplicate and repetitive
documents; misused the discovery procedure by requesting documents
already in her possession or involving closed matters; and failed to
observe basic rules, instead filing papers out of time or otherwise
ignoring directives. Based upon the foregoing, the Commission agrees
with the AJ's finding of abuse of process. Complainant is notified that
further repetitive claims, repeating entitlement to a hiring preference,
may be dismissed without further processing by the agency.
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the AJ's
issuance of a decision without a hearing was appropriate, and the
preponderance of the evidence of record does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 tends 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 77960,
Washington, DC 20013. 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 (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 15, 2009
Date
1 The AJ also found that complainant was not entitled to a hiring
preference as a former employee, in that her entitlement expired three
years from her last resignation. For this reason, while complainant may
claim she was denied reinstatement, her claim is more accurately stated
as failure to hire. In addition, complainant's demand for a 10-point
veteran's preference was denied, because complainant did not establish
that she was entitled to such through military service.
2 The AJ noted that complainant had informed her that she (complainant)
had at least five additional EEO complaints pending with regard to her
requests for reinstatement.
3 A finding of abuse of process is distinguished from the legal rule
of res judicata ("the matter has been decided"). The Commission's
regulations allow dismissal of a complaint that "states the same claim
that ... has been decided by the agency or the Commission." 29 C.F.R. �
1614.107(a) (1).
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0120073731
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120073731