0120090089
04-04-2011
Valerie A. Copeland, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Valerie A. Copeland,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120090089
Hearing No. 570-2008-00134X
Agency No. 4K-200-0124-07
DECISION
On October 1, 2008, Complainant filed an appeal from the Agency's
September 19, 2008, 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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The Commission accepts the appeal, pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission VACATES the Agency's final
order.
ISSUE PRESENTED
Whether the AJ erred in determining that the record was adequately
developed for summary disposition in the Agency's favor.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Letter Carrier at the Agency's Ward Place Station facility in
Washington, D.C. Complainant Aff. 1. On April 26, 2007, Complainant
and other employees attended a "stand-up talk." Id. at 2. Afterwards,
a supervisor instructed Complainant to leave the building because she
had allegedly been "loud and out of control" during the stand up talk.
Manager aff. 2. After Complainant returned to work on April 30, 2007,
she was instructed to leave the building, ostensibly because she was again
"loud and out of control." Id.
For the April 26, 2007 placement in off-duty status, the Supervisor of
Customer Service, who purportedly witnessed Complainant's behavior,
described his participation in the decision as follows: "I talked to
[Manager] about [Complainant's] behavior and he informed me to let
[Complainant] know she was being placed on 16.7." Supervisor aff. 2.
When asked to describe the facts underlying his actions, the Supervisor
only averred that the Agency has a policy of zero tolerance. Id.
The Supervisor never explained in his affidavit what Complainant did
on April 26, 2007 to violate the Agency's zero tolerance policy and to
warrant emergency placement in off-duty status.
The record also contains an affidavit from the Manager, who did
not personally witness Complainant's behavior on April 26, 2007.
Nevertheless, he attested to the following:
On April 26, 2007 [Supervisor] was conducting a stand up talk, during the
stand up talk [Complainant] became very loud and out of control on the
workroom floor. [Supervisor] contacted me in my office to let me know
what was going on. The [National Association of Letter Carriers] shop
steward and [Supervisor] tried to calm [Complainant] down. They could
not calm her down so [Complainant] was sent home . . . .
Manager aff. 2.
Complainant filed a formal complaint on July 24, 2007, alleging
discrimination and harassment on the bases of sex (female) and disability
(depression, stress, anxiety) when, from April 26, 2007 through April 30,
2007, she was placed on Emergency Placement in an off-duty status. At the
conclusion of the investigation, the Agency provided Complainant 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.
The Agency filed a motion for summary judgment on August 5, 2008. The AJ
assigned to the case granted the Agency's motion for summary judgment
on September 10, 2008. With respect to the disparate treatment claims,
the AJ found that the Agency articulated legitimate, nondiscriminatory
reasons for its actions: the Agency placed Complainant on Emergency
Placement pursuant to its Zero Tolerance policy, because she acted in
a loud and belligerent manner on April 26, 2007 and on April 30, 2007.
With respect to the harassment claims, the AJ found that (1) there was
no causal link between the alleged harassing incidents and her protected
bases, and (2) the alleged incidents were not sufficiently severe or
pervasive to constitute a hostile work environment.
The Agency subsequently issued a final order adopting the AJ's finding
that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not submit a statement in support of her appeal. Rather,
she submitted two medical documents: (1) an April 21, 2008 letter from
her psychiatrist, detailing Complainant's medical history and condition,
and (2) an April 30, 2008 work status form, indicating that Complainant
had been treated on that day for job-related stress.
ANALYSIS AND FINDINGS
Standard of Review
We review de novo the AJ's legal and factual conclusions, and the Agency's
final order adopting them. 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 Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614, at 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 means that we are free to accept (if accurate)
or reject (if erroneous) the factual conclusions and legal analysis of
the AJ and Agency-including 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. Dep't of Def., 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).
Upon review of the record, we determine that the AJ erred in issuing a
decision without a hearing because the record was not adequately developed
for summary disposition. The record does not provide specific information
that sets forth, with sufficient clarity, the reasons for Complainant's
placement in off-duty status such that Complainant has a full and fair
opportunity to demonstrate that the Agency's reasons are pretexts for
discrimination.
As noted above, the Manager's description of Complainant's behavior
on April 26, 2007 as being "loud and out of control" is an unsupported
conclusory statement that that does not explain what Complainant actually
did during the stand up meeting. In contrast to the Agency's unsupported
characterization of her behavior as loud and out of control, Complainant
averred that, during the stand-up talk on April 26, 2007, the shop
steward was in the middle of answering one of Complainant's questions
when her supervisor interrupted, expressing his desire to answer the
question himself. Complainant aff. 2. According to Complainant, she
replied that she wanted a shop steward's point of view. Id. Then the
shop steward pulled her aside and answered her question. Id. at 3.
The record does not include any additional information or affidavits
from employees or others who may have observed Complainant's behavior
during the stand up meeting. For example, Complainant's manager's
affidavit discusses how the shop steward had tried to calm Complainant
down when Complainant was "loud and out of control." (Manager aff. 2)
The record does not, however, include any affidavits or other information
about what the shop steward witnessed that day.
A similar lack of information exists with the Manager's description of
Complainant's subsequent behavior upon returning to work: "The next
day [Complainant] returned to work, I was on the workroom floor when
[Complainant] became loud and out of control. I instructed [Supervisor]
to send her home again . . . ." (Manager Aff. 2) The Commission again
notes that the Manager's characterization of Complainant's behavior
is conclusory, providing no information or opportunity for Complainant
to demonstrate that the explanation was a pretext for discrimination.
The record does not include any additional information or affidavits from
other employees who observed Complainant's behavior when she returned
to work. Because of the deficiencies in the record, we find that the
AJ erred in determining that the record was adequately developed for
summary judgment on the disparate treatment claims. We remand these
claims for further investigation and a hearing.
CONCLUSION
Based on a thorough review of the record, the Commission REVERSES the
Agency's final order and REMANDS this matter for a hearing in accordance
with this decision and the order below.
ORDER
The Agency shall submit to the EEOC Hearings Unit of the Washington Field
Office the request for a hearing within fifteen (15) 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 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 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 (K0610)
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 77960, Washington,
DC 20013. 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 (M0610)
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), at 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 (R0610)
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 (Z0610)
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
__4/4/11_______________
Date
2
0120090089
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090089