01990091
01-26-2001
Stuart Deutsch, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Stuart Deutsch v. United States Postal Service
01990091; 01990092; 01990945; 01991125; 01991221; 01992668; 01A00628
January 26, 2001
.
Stuart Deutsch,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal Nos. 01990091; 01990092; 01990945;
01991125; 01991221; 01992668; 01A00628
Agency Nos. 4A-110-0078-97; 4A-110-0004-98; 4A-110-0153-97;
4A-110-0010-98; 4A-110-0157-97; 4A-110-0044-98; 4A-110-0065-98;
4A-110-0033-98
Hearing Nos. 160-98-8246X; 160-98-8552X; 160-98-8335X;
160-98-8547X; 160-98-8339X; 160-99-8044X; 160-99-8045X; 160-99-8634X
DECISION
Complainant timely initiated appeals from the final agency decisions
regarding the above-referenced complaints of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1> Complainant
alleges he was discriminated against on the basis of religion (Jewish)
and in retaliation for prior EEO activity under Title VII when the agency:
(1) failed to offer him his bumping rights or overtime opportunities
on February 7 and 8, 1997; (2) informed him that he did not qualify for
the Associate Supervisor Program; (3) issued him a seven-day suspension
on June 3, 1997; (4) issued anti-Semitic orders on June 27, 1997;
(5) harassed him, which led to his using sick leave on July 7, 1997;
(6) failed to act when his thermos bottle was stolen; (7) changed his
scheduled doctor's appointment on July 16, 1997; (8) failed to balance
overtime and created inaccurate, fraudulent and illegal overtime lists for
the third quarter of 1997; (9) followed him and gave him a negative driver
observation; (10) gave him conflicting and inadequate overtime orders
regarding overtime on November 6, 1997; (11) issued him a fourteen-day
suspension for failure to follow instructions on December 11, 1997;
(12) denied him a visit to the Employee Assistance Program (�EAP�)
office and then sent him home prior to the completion of his overtime;
(13) failed to give him equal opportunity to work overtime on his own
route; (14) refused to allow him to start his workday at 6:00 a.m.;
(15) singled him out for parcel counts; and (16) improperly dismissed
one of his complaints, regarding retaliatory treatment by management,
for failure to cooperate.
The appeals are accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, we vacate and remand the agency's final decisions.
BACKGROUND
The record reveals that during the relevant time, complainant
was employed as a City Carrier at the agency's Main Post Office,
Flushing, New York. Believing that the agency had committed unlawful
discrimination, complainant sought EEO counseling and, subsequently,
filed the above-referenced formal complaints between March 21, 1997 and
February 11, 1998. At the conclusion of each of the investigations,
complainant was provided copies of the investigative files and requested
hearings before an EEOC Administrative Judge (�AJ�). With respect to
each complaint, the AJ issued a decision without a hearing finding no
discrimination. The AJ concluded that complainant failed to prove by
a preponderance of the evidence that any of the agency's actions were
due to religious or retaliatory animus.
In each of his appeals, complainant contends that the AJ improperly
denied him the opportunity for a hearing to further develop his case.
Complainant makes numerous arguments to the effect that there are material
facts in dispute, including conflicting witness statements and alleged
misrepresentation of the agency's collective bargaining agreement.
The agency stands on the record and requests that we affirm each of its
final decisions adopting the AJ's decisions.
ANALYSIS
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 response to a motion for 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.
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 judgement on such evidence is
improper." Pedersen v. Department of Justice, EEOC Request No. 05940339
(February 24, 1995).
In reviewing the AJ's decisions, we find that in several instances, the AJ
accepted the agency's version of facts which were disputed by complainant.
For example, the AJ states that the agency did not offer complainant
his bumping rights February 7, 1997, because the responsible management
official (�RMO�) did not have prior notice of complainant's return from
a detail at another location. However, complainant contends that the RMO
was aware of his return to the facility, because he called her the prior
week to inform her and the matter was part of a settlement agreement which
the RMO was a party. Similarly, with respect to the agency's failure
to balance his overtime for the third quarter of 1997, the AJ found that
both management and the union were in agreement concerning the fairness
of the overtime list. Yet, the affidavit from one of the union stewards
stated that management officials refused to meet with him to discuss the
balancing of overtime and that he believed that management discriminated
against complainant based on his religion and prior EEO activity.
As hearings are "part of the investigative process" (29
C.F.R. �1614.109(c)), the Commission believes that error occurred when
the investigation of these complaints ceased at the stage just prior
to the investigative hearing. See Jafri v. Securities and Exchange
Commission, EEOC Request No. 05910194 (August 12, 1991). The factual
aspects of this case are simply too unclear and too conflicting to
permit a recommended decision without a hearing. The dispute between
the parties would benefit from the introduction of live testimony
and cross-examination. EEOC Regulations plainly indicate that the
hearing is intended as a continuation of the investigatory process.
Truncation of this process, while material facts are still in dispute,
improperly deprives a complainant of a full and fair investigation.
Stabler v. Dept. of the Navy, EEOC Request No. 05910080 (February 21,
1991). As a result, we find that the AJ erred in issuing the decisions
without the benefit of a hearing.
Additionally, we note that in his complaints, complainant alleged a
series of discriminatory events occurring from February 1997 through
December 1997. In essence, complainant alleges that he was subjected to
a pattern of discriminatory harassment at the hands of his supervisors.
When considered in the light most favorable to the complainant, we
find that when combined, his complaints state a claim of harassment.
See Cervantes v. United States Postal Service, EEOC Request No. 05930303
(Nov. 12, 1993). Thus, we find that the agency should have consolidated
complainant's complaints instead of treating each complaint as a separate,
isolated matter. See Ferguson v. Department of Justice, EEOC Request
No. 05970792 (March 30, 1999); Meaney v. Department of the Treasury,
EEOC Request No. 05940169 (November 3, 1994) (stating that an agency
should not ignore the �pattern aspect� of a complainant's allegations
and define the issues in a piecemeal manner where an analogous theme
unites the complained of matters).
CONCLUSION
In light of the foregoing, we VACATE the agency's final decisions and
REMAND the matter for further processing as prescribed in the Order below.
ORDER
The complaint is remanded to the Hearings Unit of the New York District
Office for scheduling of a hearing in an expeditious manner. The agency
is directed to submit copies 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 (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
January 26, 2001
______________________________
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.