01a53181
06-29-2006
Walter J. Slocum, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Walter J. Slocum v. United States Postal Service
01A53181
June 29, 2006
.
Walter J. Slocum,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A53181
Agency No. 4C-290-0147-03
Hearing No. 140-2004-00280X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission VACATES the agency's final order and
REMANDS this matter to the Charlotte District Office.
The record indicates that at the relevant time, complainant was employed
as a City Carrier, PS-05, at the Plymouth, Massachusetts Processing and
Distribution Center. On June 1, 2003, complainant applied for a lateral
transfer to the Greater South Carolina District because he believed that
the weather in South Carolina would be better for his combat wounds.
On or about August 18, 2003, complainant learned that the request had
been denied. Complainant requested reconsideration, and two weeks later,
he was told that the reconsideration request was also denied. Believing
he was a victim of discrimination, complainant sought EEO counseling and
filed a formal complaint alleging that the agency discriminated against
him on the bases of disability (combat wounds and �perceived disability�)
and age (D.O.B. 8/20/52) when, on or about August 18, 2003, he was denied
a lateral transfer to the Greater South Carolina District.
At the conclusion of the investigation, complainant was informed of his
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing. On November 19, 2004, the agency filed a Motion
for a Decision Without a Hearing. On February 10, 2005, complainant
responded, and on February 14, 2005, the AJ issued a decision without
a hearing, finding no discrimination. The AJ adopted and incorporated
by reference the findings of fact set forth in the agency's Motion.
The AJ found that complainant established a prima facie case of
age discrimination and that the agency articulated a legitimate,
nondiscriminatory reason for its action; namely, the transfer was denied
because of complainant's poor attendance and safety records. The AJ then
found that the record shows that of the thirteen employees selected for
transfer to the Greater South Carolina District during the time frame at
issue, eight (8) of those employees belonged to complainant's protected
age group and two were older than complainant. The AJ also found that
the decision to deny complainant's transfer request occurred almost
three weeks before the alleged discriminatory age-based comments were
made by the acting Senior Post Office Manager, Greater South Carolina.<0>
The AJ found that there could therefore be no showing that the agency's
articulated, nondiscriminatory reason for the denial of his transfer
request is pretext for prohibited age discrimination or that "but for"
his age, complainant's transfer request would have been granted.
The AJ also found that complainant failed to show that he was an
individual with a disability within the meaning of the Rehabilitation
Act and therefore could not prove that the agency's explanation was
a pretext for unlawful disability discrimination. The AJ noted that
complainant argued, for the first time in his response to the agency's
Motion for Decision Without a Hearing, that the agency failed to make
a reasonable accommodation. In addition to reiterating her conclusion
that complainant failed to demonstrate that he is entitled to the
protection of the Rehabilitation Act, the AJ also found that complainant
failed to establish a nexus between his absences and his disabilities.
In conclusion, the AJ found that when viewing facts in the light most
favorable to complainant, there was no genuine issue of material fact in
dispute and complainant was not subjected to discrimination on either
alleged basis. In its final order, the agency fully adopted the AJ's
decision.
On appeal, complainant contends that there is a genuine issue of
material fact in dispute; namely, whether on August 19, 2003, the acting
Senior Post Office Manager, Greater South Carolina, made a series
of discriminatory age and disability-based comments to complainant.
Complainant contends that such comments are evidence of the official's
discriminatory motivation.<0> The agency requests that we affirm the
final order. As this is an appeal from a decision issued without a
hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is
subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
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).
We find that the AJ erred in issuing a decision without a hearing in this
case as the record contains a genuine issue of material fact; namely,
whether the acting Senior Post Office Manager made comments related to
complainant's age and/or disability in the context of a conversation
in which they specifically discussed the denied transfer request,
and in which complainant asked for reconsideration of the request.
Complainant contends that the acting Senior Post Office Manager stated
that sick leave was a major problem for him across the board, and that
�you have 33 years in service and you are pretty much washed up and will
be retiring soon, and if you think you can come down here and lie in the
sun and play golf and use up the rest of your sick leave on my watch,
it is not going to happen.� Report of Investigation (ROI), Affidavit A.
Complainant also contends that the acting Senior Post Office Manager
told him that he needed young people with the ability to work 10 hours
a day, six days a week with no questions asked. Id. The acting Senior
Post Office Manager, who was the ultimate decision maker in this case,
denies making such comments. We find that it is immaterial that such
comments were allegedly made subsequent to when the decision to deny the
transfer request was made, particularly since the agency subsequently
took a second, related action; namely, to again deny the transfer request
upon reconsideration.<0> Here, a reasonable fact-finder could conclude
that such comments were persuasive evidence in support of complainant's
contention that the agency's stated reasons for denying his transfer
request, were pretextual.
Accordingly, the issuance of a decision without a hearing was improper,
and we VACATE the agency's final order and REMAND the matter for a
hearing in accordance with this decision and the ORDER below.
ORDER (E0900)
The agency shall submit to the Hearings Unit of the Charlotte District
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 Hearing
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 (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:
June 29, 2006
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
0 1The record indicates that the acting Senior Post Office Manager was
the approving official. See ROI, Affidavit B.
0 2We note that complainant does not allege that such comments constituted
a separate claim of unlawful harassment.
0 3Complainant contends that he requested reconsideration so that he could
present more information about the reasons for his high sick leave usage
(related to his combat wounds). He states that the acting Senior Post
Office Manager told him to come back in two weeks so that he could review
the additional documentation. Complainant contends that when he returned,
his request was again denied. Complainant states that he was told each
time that the primary reason for the denial was his sick leave usage.