07A30027_r
02-03-2000
Virginia DeLeon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Virginia DeLeon v. United States Postal Service
07A30027
February 3, 2004
.
Virginia DeLeon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A30027
Agency No. 1A-126-0035-98
Hearing No. 160-A0-8376X
DECISION
Following its October 31, 2002 final action, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its final
action that rejected an Administrative Judge's (AJ) decision finding
that complainant was subjected to discrimination based on sex (female).
In her complaint, complainant alleged that she was subjected to
discrimination on the basis of sex (female) when:
Complainant was denied employment because of her pregnancy.
Following completion of the investigation of complainant's complaint, the
agency informed complainant of her right to request a hearing before an
EEOC AJ or receive a final decision from the agency. Complainant elected
to request a hearing before an AJ and her complaint was referred to the
EEOC's New York District Office for a hearing. On July 11, 2002, the
AJ sua sponte issued a Notice of Intent to Issue a Decision Without
a Hearing, stating that absent a showing that there is a genuine
dispute as to a material fact a decision without a hearing shall be
issued in favor of the agency. On September 19, 2002, the AJ issued a
decision without a hearing finding that complainant's non-selection was
a violation of the Pregnancy Discrimination Act. Specifically, the AJ
stated that no evidence was provided that the agency has a policy of not
hiring applicants for the casual clerk position with temporary 20 pound
lifting restrictions. Further, the AJ noted that the agency does not
state why it cannot accommodate complainant's temporary restriction or
explain why accommodating the restriction would create an undue burden.
The agency issued its final action declining to implement the AJ's
decision finding discrimination.
On appeal, the agency claims that the AJ erred in finding that it
discriminated against complainant based on her pregnancy. The agency
argues that it presented evidence that the reason complainant was not
selected was because she did not meet the physical requirements of the
casual clerk position in question. The agency states that complainant's
limitation (20 pound lifting restriction and no ability to carry 35-40
pounds) was far below the requirements of the position (up to 70 pounds
lifting and carrying of 45 pounds and over). The agency states that
the hiring individual concluded that complainant could not perform
the job safely. The agency claims that complainant did not request
an accommodation. The agency avers that complainant failed to produce
evidence to suggest that this decision was pretext for discrimination
based on her pregnancy or sex because the only evidence she presented is
that another pregnant employee was treated more favorably. Additionally,
the agency argues that the AJ erred in ordering that complainant be
placed in a casual clerk position and that she receive back pay dating
from September 26, 1997, because she failed to mitigate her damages.
In response to the agency's appeal, complainant requests that the AJ's
decision be fully implemented. Complainant states that she has met her
burden of establishing a prima facie case of discrimination. She claims,
however, that the agency's articulated legitimate non-discriminatory
reason for her non-selection is a pretext for discrimination and does
not address the issue of reasonable accommodation. Complainant states
that the Report of Investigation reveals that another employee, hired as
a casual with similar temporary limitations, was given an accommodation
regarding her restrictions. Complainant disputes the agency's position
that she never requested an accommodation. Further, complainant notes
that she provided the medical opinion of her obstetrician, a medical
expert in pregnancy, who stated that she could perform the job with
accommodations. Thus, complainant argues that she provided sufficient
evidence to prove pretext.
EEOC Regulations provide that if an administrative judge determines
upon his or her own initiative that some or all facts are not in genuine
dispute, he or she may, after giving notice to the parties and providing
them an opportunity to respond in writing within 15 calendar days, issue
an order limiting the scope of the hearing or issue a decision without
holding a hearing. 29 C.F.R. � 1614.109(g)(3); see also EEO MD-110,
at 7-15. The Commission has held that an administrative judge 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. Petty, Jr. v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003) (footnote omitted).
In the present case, we find that the AJ improperly issued a summary
judgment decision. Specifically, we find that the AJ failed to provide
adequate notice to the agency prior to issuing her decision. Although the
record reveals that the AJ issued a Notice of Intent to Issue a Decision
Without a Hearing on July 11, 2002, this Notice informed the parties
that she was proposing to issue a decision without a hearing in favor
of the agency. Ultimately, in her September 19, 2002 decision, the AJ
issued a decision without a hearing against the agency. The record
contains no evidence that a second notice was provided to the agency
that the AJ was proposing to issue summary judgement against the agency
and informing the agency that it had fifteen-days to respond under 29
C.F.R. � 1614.109(g)(3).
Accordingly, the agency's final action is VACATED and the case is REMANDED
for further action in accordance with the Order below.
ORDER
The agency shall request that the Hearings Unit of the appropriate EEOC
District Office schedule a hearing. The agency is directed to submit
a copy of the complaint file to the EEOC District Office within 15
calendar days of the date this decision becomes final for a decision
from an Administrative Judge in accordance with 29 C.F.R. � 1614.109.
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 EEOC District Office. After receiving a decision from the EEOC
Administrative Judge, the agency shall issue a decision in accordance
with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 (M0701)
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
February 3, 20004
__________________
Date