0120080074
09-18-2009
Theresa M. Hensel, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Theresa M. Hensel,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080074
Hearing No. 530-2006-00179X
Agency No. 1C-081000405
DECISION
On September 28, 2007, complainant filed an appeal from the agency's
August 28, 2007 final order concerning her equal employment opportunity
(EEO) complaint alleging 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission VACATES the agency's final
order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Labor Relations Specialist (LRS), EAS-19, at the agency's Bellmawr,
New Jersey Post Office.
On August 15, 2005, complainant filed an EEO complaint alleging that
she was subjected to unlawful harassment on the bases of her sex and in
reprisal for prior protected EEO activity when:
1. complainant told the Labor Relations Manager, EAS-24, who was her
supervisor (S1), on numerous occasions that her work load was more than
she could handle and working between three buildings on different tours
was exhausting, nevertheless, complainant was given more work;
2. complainant was denied a proper chair for approximately two months
and it took seven months to get a desk;
3. complainant was denied training on the Time & Attendance Control System
(TACS) system and the Human Resources Information System (HRIS);
4. complainant was not given clerical assistance or any assistance with
her work load;
5. complainant was given an office which served as a through-way for
the Electrical Room and therefore had no privacy and daily interruptions
became the norm;
6. on October 13 and 15, 2004, Lead Plant Manager for the South Jersey
Processing and Distribution Center (LPM) screamed at complainant and
management failed to investigate her claims of abuse by LPM;
7. S1 overturned three decisions complainant made on discipline and told
her she needed to be monitored during Step 2 hearings;
8. complainant was the only LRS assigned to give training and was required
to teach classes around her regular workload on all three tours; and
9. after attending mediation, the Human Resources Manager (HRM) refused
to speak to complainant and he would turn his back when complainant
walked past him.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over the complainant's objections, the AJ assigned
to the case granted the agency's February 9, 2007 motion for a decision
without a hearing and issued a decision without a hearing in favor of
the agency on August 21, 2007.
The AJ found that incidents 1 through 5 and 8 were discrete actions and
dismissed them for untimely EEO counselor contact. The AJ determined
that complainant became aware of the harassment in September 30, 2003,
and therefore should have contacted an EEO Counselor by November 14, 2003.
Instead, complainant contacted the EEO Counselor on October 13, 2004.
With regard to the remaining incidents, the AJ found that complainant
failed to show that she was subjected to retaliatory harassment because
she failed to establish a nexus existed between prior EEO activity and
the incidents at issue in this case. Additionally, the AJ found that
complainant failed to show that incidents 6, 7 and 9 resulted from animus
towards her sex. Finally, the AJ determined that the taken together,
the remaining incidents were not sufficiently severe or pervasive to
render her work environment hostile. The agency subsequently issued a
final order adopting the AJ's finding that complainant failed to prove
that she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ erred in issuing a decision
without a hearing. Complainant contends that she supplied sufficient
evidence to show that the agency was motivated by her sex in its actions.
Further, complainant argues that the AJ erred in finding that incidents
1 through 5 and 8 were untimely.
The agency argues that the AJ appropriately dismissed complainant's
incidents and appropriately determined that a hearing was not warranted
in the case.
ANALYSIS AND FINDINGS
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).
We find that the foregoing requirements were met in this case. However,
leaving aside for the moment the matter of whether there are genuine
issues of material fact in dispute, we further find that the AJ erred as a
matter of law with regard to his determination not to consider incidents 1
though 5 and 8 on the basis that they were discrete acts untimely raised.
The Supreme Court has held that a complainant alleging a hostile work
environment will not be time barred if all acts constituting the claim
are part of the same unlawful practice and at least one act falls within
the filing period. See National Railroad Passenger Corp. v. Morgan,
536 U.S. 101 (June 10, 2002). The Court further held, however, that
"discrete discriminatory acts are not actionable if time barred, even
when they are related to acts alleged in timely filed charges." Id.
Nonetheless, the Court held that such untimely discrete acts may be used
as background evidence in support of a timely claim. Id.
Upon review, we find that, while the AJ may have correctly concluded that
incidents 1 through 5 and 8 were discrete acts which complainant did not
raise in a timely fashion, under the principles established in Morgan, he
nonetheless should have considered these incidents as background evidence
in support of complainant's claim of harassment. We will therefore vacate
the final agency order, and remand the case for further processing.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we VACATE the agency's
final order adopting the AJ's decision without a hearing and REMAND the
case for further processing. The agency is required to comply with the
Order of the Commission, below.
ORDER
The agency shall submit to the Hearings Unit of the Cleveland Field
Office a request for assignment to an AJ to this case within thirty (30)
calendar days of the date this decision becomes final. The agency is
directed to submit a copy of the complaint file to the EEOC Hearings Unit
within thirty (30) 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 (K0408)
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)
(1994 & Supp. IV 1999). 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 (M0408)
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 (R0408)
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 (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
September 18, 2009
Date
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0120080074
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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