01a01521and01a00168
04-20-2000
Sarah A. Hughes, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Sarah A. Hughes, )
Complainant, )
) Appeal Nos. 01A00168
) 01A01521
v. ) Agency Nos. 1G-761-0028-98
) 1G-761-0045-98
William J. Henderson, ) 1G-761-0089-97
Postmaster General, ) 1G-761-0130-99
United States Postal Service, ) Hearing Nos. 310-99-5034X
(S.E./S.W. Region), ) 310-99-5092X
Agency. ) 310-99-5282X
)
310-98-5433X
DECISION
Complainant timely initiated appeals from agency final decisions dated
September 7, 1999 and November 8, 1999, concerning her equal employment
opportunity (EEO) complaints of unlawful employment discrimination in
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791, et seq., and Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeals are accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405),
and are hereby consolidated. For the following reasons, the agency's
final decisions are VACATED and the complaints are REMANDED for a
consolidated hearing before an Administrative Judge.
Complainant, an employee at the agency's Amarillo, Texas facility, filed
four EEO complaints, dated May 18, 1997, October 18, 1997, December 20,
1997, and December 21, 1997, alleging that she was discriminated against
based on physical disability (chronic subtalar arthritis, right rotator
cuff tear, and left upper arm/shoulder overuse injury) when:
(1) on February 14, 1997, she was required to perform duties beyond her
physical limitations;
(2) on February 28, 1997, she was questioned about being released from
full duty;
(3) she was informed that her physical limitations on her feet were
not documented properly, and it was suggested that she file a worker's
compensation claim;
(4) she was "sectioned out" because she could not perform her duties
as a part-time flexible (PTF) distribution clerk due to her physical
limitations;
(5) she was pressured and coerced to seek release from her medical
restrictions in order to be a regular employee;
(6) she was required to sit sideways while working, in violation of
her medical restrictions;
(7) she was passed over for a full-time regular conversion; and
(8) on June 27, 1997, she was assigned to the carrier check-in area,
in violation of her medical restrictions.
Complainant further alleged that incidents (2) and (8) constituted
retaliation against her for prior EEO activity. In addition, complainant
alleged that incident (7) constituted discrimination based on her race
(Caucasian) and sex (female), because a black male PTF was converted to
a full-time regular position.
At the conclusion of the investigations on the four complaints at issue,
complainant received copies of the investigative reports and, with
respect to each one, requested a hearing before an EEOC Administrative
Judge (AJ). The AJ issued decisions without a hearing, dated July 20,
1999 and August 31, 1999, finding no retaliation or discrimination.
The agency adopted the AJ's recommended findings and conclusions by
final decisions issued September 7, 1999 and November 8, 1999.
On appeal, complainant contends, inter alia, that there were material
disputed facts which precluded the AJ from issuing decisions without
a hearing. The agency stands on the record and requests that we affirm
its final decisions.
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 or the Rehabilitation Act, summary judgment is appropriate if,
after adequate investigation, complainant has failed to establish the
essential elements of his or her case. Cf. Spangle v. Valley Forge
Sewer Authority, 839 F.2d 171, 173 (3d Cir. 1988).
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 were no genuine issues of material fact in the
instant complaints. In finding no discrimination, the AJ relied on the
representations of management officials as provided in their affidavits.
The record reveals disputed facts regarding many of the issues raised.
For example, the Tours 1 and 3 Managers of Distribution Operations denied
any knowledge that complainant was working outside her restrictions,
whereas complainant contends that even though she was not expressly told
to violate her restrictions, she complained to various supervisors that
the attempted accommodations she had received were inadequate. Indeed,
in her July 20, 1999 decision, the AJ herself noted that complainant
"discussed her problems sitting sideways with supervisors in June, July,
and August, 1997"( page 10), but then concluded, inconsistently, that
complainant "does not assert that she ever discussed a problem sitting
sideways with her supervisor until she filed a worker's compensation
claim [in August, 1997] due to injuries caused by sitting sideways, at
which time she was moved to another area to work" (page 17). Moreover,
it is disputed whether the area to which complainant was moved satisfied
her medical restrictions, whether earlier attempted accommodations had
been effective, and whether there had been an unnecessary delay in
responding to complainant's alleged reports that the accommodations
she did receive were ineffective.<2> Similarly, there is a factual
dispute as to whether complainant was subjected to disparate treatment
based on disability with respect to various assignments and overtime,
in comparison to other part-time flexible employees she identifies who
had no disabilities or had different disabilities.
We note that the hearing process is intended to be an extension of the
investigative process, designed to �ensur[e] that the parties have a
fair and reasonable opportunity to explain and supplement the record and
to examine and cross-examine witnesses.� See Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) at 6-1
(November 9, 1999); see also 64 Fed. Reg 37,644, 37,657 (1999) (to be
codified and hereinafter referred to as 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 summary,
there are simply too many unresolved issues which require an assessment
as to the credibility of the various management officials, co-workers,
and complainant herself. Therefore, judgment as a matter of law for
the agency should not have been granted.
In addition, we find that the AJ's legal analysis was erroneous with
respect to a number of complainant's claims. First, the AJ analyzed
all of complainant's claims of disability discrimination solely as
disparate treatment claims, applying the indirect evidence method of
proof set forth in McDonnell Douglas Corp. v. Green, 411, U.S. 792
(1973) and Prewitt v. United States Postal Service, 662 F.2d 292, 310
(5th Cir. 1981) to determine whether the responsible management officials
possessed discriminatory intent. The AJ also concluded with respect
to many of the incidents at issue that complainant failed to establish
that she had suffered an adverse employment action, as required to
prove disparate treatment. However, complainant's claims that she was
assigned to perform duties outside her medical restrictions, including
claims that supervisory officials failed to respond to complaints that
the accommodations provided were ineffective, should have been analyzed
as claims of both disparate treatment and, in the alternative, denial of
reasonable accommodation. Under the Commission's regulations, an agency
is required to make reasonable accommodation to the known physical and
mental limitations of a qualified individual with a disability unless
the agency can show that accommodation would cause an undue hardship. 29
C.F.R. � 1630.2(o); 29 C.F.R. �1630.2(p).<3> No finding of discriminatory
intent, and no adverse employment action, is required in order to conclude
that an agency failed to provide a reasonable accommodation to a qualified
individual with a disability.
Second, in concluding that a number of complainant's claims failed
because she did not demonstrate that she suffered an adverse employment
action which rendered her "aggrieved," the AJ fragmented the claims.
Complainant alleges that she was subjected to an ongoing pattern of
discrimination over the approximately eight-month period at issue during
which she alleges she was repeatedly denied effective accommodation of
her alleged disabilities. These separate incidents should therefore
have been analyzed, in the alternative, as a claim of ongoing harassment.
Third, although the AJ cited the prima facie case standard for
retaliation, the AJ subsumed the retaliation claim within the analysis of
complainant's claims of disparate treatment on other bases. Although an
adverse employment action is required in order to state a claim of
discrimination, the Commission interprets the statutory retaliation
clauses more broadly "to prohibit any adverse treatment that is based
on a retaliatory motive and is reasonably likely to deter the charging
party or others from engaging in protected activity." EEOC Compliance
Manual, Section 8 (Retaliation) at 8-13 - 8-14 (May 20, 1998); see also
29 C.F.R. � 1630.12.
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 VACATES the
agency's final decisions dated September 7, 1999 and November 8, 1999,
and REMANDS the four complaints at issue for a hearing in accordance
with this decision and the ORDER below.
Finally, by letter to the Commission postmarked January 8, 2000,
complainant has requested to add a claim to her complaint, alleging
that she was discriminated against on the basis of her disability
and/or reprisal when: (1) she was informed that she must submit medical
documentation in support of all requests for sick leave; (2) she was
required to take a fitness for duty examination on or about November 16,
1999, and (3) she was notified on November 17, 1999, that she would be
required to submit to a "functional capacity evaluation." These issues
are not before the Commission at this time, inasmuch as complainant has
neither sought EEO counseling nor filed a formal complaint in regard to
these contentions. It is not clear from complainant's letter whether or
not she is in the process of filing an EEO complaint on this issue. If
not, complainant is advised that if she wishes to pursue, through the
EEO process, the additional claims raised for the first time on appeal,
she must request, on remand, that the AJ allow her to amend her pending
consolidated complaints to add these additional claims. If the AJ, in
her discretion, disallows the amendment, the AJ shall advise complainant
that complainant may initiate contact with an EEO counselor within 15
(fifteen) calendar days after he receives the AJ's decision denying the
amendment. The Commission advises the agency that if complainant seeks
EEO counseling regarding the new claims within the above 15-day period,
the date complainant filed her letter with the Commission in which she
raised these claims (January 8, 2000) shall be deemed to be the date of
the initial EEO contact, unless she previously contacted a counselor
regarding this matter, in which case the earlier date would serve as
the EEO counselor contact date. Cf. Qatsha v. Department of the Navy,
EEOC Request No. 05970201 (January 16, 1998).
ORDER
The complaints are 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 files 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 files have been transmitted to the Hearings Unit. Thereafter,
the Administrative Judge shall issue a decision on the complaints 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 (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:
April 20, 2000
___________________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
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:
___________________________
Equal Employment Assistant 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 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: www.eeoc.gov.
2In determining whether there has been an unnecessary delay in responding
to a request for reasonable accommodation, relevant factors include:
(1) the reason(s) for the delay; (2) the length of the delay; (3) how
much the individual with a disability and the employer each contributed
to the delay; (4) what the employer was doing during the delay; and
(5) whether the required accommodation was simple or complex to provide.
See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship
Under the Americans With Disabilities Act (3/2/99) at n.35.
3The 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 .