Sarah A. Hughes, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.

Equal Employment Opportunity CommissionApr 20, 2000
01a01521and01a00168 (E.E.O.C. Apr. 20, 2000)

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 .