01a05805
02-13-2001
Wayne Perron, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Wayne Perron v. United States Postal Service
01A05805
February 13, 2001
.
Wayne Perron,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05805
Agency No. 1-K-220-0047-98
Hearing No. 100-99-8142X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency action
concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, we VACATE the agency's
final action and REMAND the matter.
ISSUE PRESENTED
The issue presented herein is whether the EEOC Administrative Judge (AJ)
properly granted a summary judgment ruling in favor of the agency.
BACKGROUND
Complainant, employed by the agency as a Supervisor, Maintenance
Operations (EAS-16) at the time of the alleged discriminatory events,
filed a formal complaint on October 18, 1998, in which he alleged that he
was harassed on the bases of disability (two missing fingers) and reprisal
(prior EEO activity) when he was subjected to offensive language, denied
annual leave and subsequently charged absence without leave (AWOL),
received two letters of warning, and given a new work schedule.<2>
The agency accepted the complaint for investigation. At the conclusion
of the investigation, the agency informed complainant of his right to
request either a hearing before an AJ or an immediate final decision from
the agency. Complainant requested the former. The AJ, after examining
the investigative report and the parties' responses to his consideration
of summary judgment, opted to issue a ruling without a hearing. The AJ's
ruling found that the agency had not engaged in discrimination as alleged
by complainant. On July 25, 2000, the agency's final action implemented
the AJ's findings. This appeal followed.
A thorough examination of the file reveals that, on August 17, 1998,
complainant walked into his supervisor's (the responsible management
official, or RMO) office to discuss a training matter. Another manager
(AM) was in the RMO's office. After the three discussed the training,
the conversation turned to each other's weekend events. The RMO stated
that he had a terrible weekend because his �fuckin' boat wouldn't start.�
This language made complainant so uncomfortable that he left the office.
When the AM left the RMO's office, complainant explained to her that
the RMO's language made him uncomfortable. That afternoon, the AM had a
discussion with the RMO regarding his use of foul language. Complainant
contends that the RMO was aware that his use of foul language offended
complainant, as well as other employees. Complainant's contention is
based on the RMO's first meeting with the maintenance management staff
where he (the RMO) allegedly used foul language and made derogatory
statements about the ethnic backgrounds of certain individuals.
According to complainant, he made it clear to the RMO at that time that
he was offended by such language and felt that it was unprofessional.
The next day, the RMO called complainant into his office. The RMO
indicated that complainant's leave request, submitted on August 10,
1998 for August 20 - 21, would not be approved because complainant
never finished the projects to which he was assigned. Upset that his
leave request was being denied, complainant requested, and was granted,
a meeting with the RMO and the Manager of Maintenance (MM), the RMO's
supervisor. According to complainant, he told the RMO and the MM that
until the request for leave, the RMO had never indicated that complainant
had problems with performing his job duties. Complainant also asked the
RMO if he had anything in writing to substantiate his claims regarding
complainant's performance. After the RMO indicated that he did not, the
MM, according to complainant, instructed the RMO to approve the leave and
stated that the three would resolve the situation later. But according
to the MM, he did not instruct the RMO to approve complainant's leave
request. The MM further stated that approval of leave requests is done
on a case-by-case basis, and that not completing work assignments may
be a factor in considering such requests.
On August 20, 1998, one of the days for which he had requested leave,
complainant failed to report to work. When he returned home from a family
outing on that day, there were two messages on his machine from co-workers
indicating that he should expect disciplinary action when he returned
to work. The next day, the other day for which he had requested leave,
complainant again failed to report to work. At approximately 11:00 a.m.,
complainant called the RMO to get an explanation regarding the previous
day's events. The RMO responded by telling complainant that, because
his leave request had not been approved, he was being charged AWOL
for not reporting to work. Complainant discontinued the conversation.
A short time later, he called back and requested sick leave. He did not
speak with the RMO, instead he spoke with the secretary. Complainant also
spoke to the MM that day, and the MM indicated that he did not have any
knowledge of an approved leave request.
On the 28th of September, complainant received two Letters of
Warnings (LOWs); one for being AWOL on August 20 - 21, the other for
Unsatisfactory Work Performance. The RMO provided information which
indicated that complainant was given an LOW for Unsatisfactory Work
Performance because he failed to follow instructions. Specifically,
the RMO's information indicates that, on August 5, 1998, complainant was
assigned duties that were supposed to be completed by August 17, 1998.
The RMO's information also indicates that as of August 21, 1998, the
duties still were not completed. In addition, complainant allowed an
employee assigned to Tour 1 to work on Tour 2. Upon discovering this,
the RMO instructed complainant to have the employee report to Tour 1.
According to information provided by the RMO, this was never done.
On October 20, 1998, complainant was informed by the RMO that his work
schedule was being changed from Tour 2 to Tour 1 (10:15 p.m. to 7:15
a.m.) with non-scheduled days of Friday (Thursday night) and Saturday
(Friday night). The schedule change became effective on October 24,
1998, which means complainant was given a four days notice. But the
assignment order indicates that complainant was given seven-days
notice.<3> Complainant stated that the RMO told him that the schedule
change was necessary because one of the Tour 1 supervisors had retired,
and that tour needed stability. Complainant also stated that two other
Tour 2 supervisors, once they learned of the Tour 1 vacancy, approached
the RMO and suggested that the vacancy be filled on a rotating basis.
According to complainant, the RMO refused to consider this option.
Finally, complainant stated that on his original tour, he was supervising
18 employees, but on his new tour, he was only supervising six employees.
ANALYSIS AND FINDINGS
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 the context of an administrative proceeding under Title
VII, summary judgment is appropriate if, after adequate investigation,
complainant has failed to establish the essential elements of his or
her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173
(3d Cir. 1988). In determining whether to grant 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 judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
After a careful review of the record, we find that the AJ erred when he
concluded that there was no genuine issue of material fact in this case.
In finding no discrimination, the AJ found that complainant failed to
prove that he was a qualified individual with a disability, and that he
failed to establish a prima facie case of reprisal.<4>
The AJ's finding regarding complainant's disability was based on
statements provided by complainant which indicated that he was not
substantially restricted in a major life activity. The AJ's finding
on the claim of disability discrimination was also based on statements
provided by the MM and the AM which indicated that they did not regard
complainant as disabled. The Commission notes, however, that there is
no evidence in the file which indicates that the RMO did not regard the
complainant as disabled. But there is evidence that the RMO referred
to persons with physical deformations as �gimps.� The Commission also
notes that the RMO, the only agency witness with direct knowledge of
the issues of complainant's claim of discrimination, did not provide an
affidavit after three attempts.
In examining whether complainant had established a prima facie case
of reprisal, the AJ correctly reasoned that in order to establish
such a case, complainant must show the existence of four elements:
(1) that he engaged in protected activity; (2) that the alleged
discriminating official was aware of the protected activity; (3) that
he was disadvantaged by an action of the agency contemporaneous with
or subsequent to such participation; and (4) that there was a causal
connection between the protected activity and the adverse employment
action. See Hochstadt, Id., see also Mitchell v. Baldridge, 759 F.2d
80, 86 (D.C. Cir. 1985); Burris v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
The causal connection may be shown by evidence that the adverse action
followed the protected activity within such a period of time and in such
a manner that a reprisal motive is inferred. Simens v. Department of
Justice, EEOC Request No. 05950113 (March 28, 1996) (citations omitted).
Generally, the Commission has held that nexus may be established if the
protected activity and the adverse action occurred within one year of
each other. Patton v. Department of the Navy, EEOC Request No. 05950124
(June 27, 1996). According to the AJ, complainant failed to establish a
prima facie case because he failed to show the existence of the second
and fourth elements. We disagree. Evidence in the file indicates
that complainant served as a witness in an EEO complaint filed against
the RMO. The AJ stated that common sense suggested that the RMO knew of
complainant's EEO participation, but since complainant did not produce
any evidence which showed that the RMO actually knew of the prior EEO
participation, complainant could not prevail. But complainant's unrefuted
testimony, combined with the fact that the prior EEO participation
concerned the RMO, convinces the Commission that the RMO did know of
complainant's EEO participation. The AJ also stated that complainant
failed to specify the time frame of his prior EEO participation, and
therefore did not establish a causal connection. But the investigative
file contains information which indicates that the prior EEO participation
occurred in February 1998. Because the EEO participation and the adverse
employment action occurred within a year of each other, this Commission
finds that complainant did establish a causal connection.
We note that the hearing process is intended to be an extension of the
investigative process, designed to �ensure that the parties have a fair
and reasonable opportunity to explain and supplement the record and to
examine and cross-examine witnesses.� See EEOC Management Directive
(MD) 110, as revised, November 9, 1999, Chapter 6, page 6-1; see also
29 C.F.R. �� 1614.109(c) and (d). �Truncation of this process, while
material facts are still in dispute and the credibility of witnesses is
still ripe for challenge, improperly deprives complainant of a full and
fair investigation of his claims.� Mi S. Bang v. United States Postal
Service, EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley
v. United States Postal Service, EEOC Request No. 05950628 (October
31, 1996); Chronister v. United States Postal Service, EEOC Request
No. 05940578 (April 23, 1995). In summary, the material facts of whether
the RMO regarded complainant as disabled and referred to persons with
physical deformation as �gimps�, and why complainant's work schedule was
changed are unresolved. Additionally, there are some credibility issues
(i.e., whether the MM told the RMO to approve complainant's leave request)
in this case that can only be resolved by a hearing. Therefore, judgment
as a matter of law for the agency should not have been granted in this
case.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission VACATES the
agency's final action and REMANDS the matter to the agency in accordance
with this decision and the ORDER below.
ORDER
The complaint is remanded to the Hearings Unit of the appropriate EEOC
field office for scheduling of a hearing in an expeditious manner.
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 (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
February 13, 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.
2In complainant's affidavit, he listed additional incidents of harassment.
Complainant is advised, however, that if he wishes to pursue those
additional incidents, he must initiate contact with an EEO counselor
within 15 days of the date he receives this decision. The agency is
advised that if complainant initiates such contact within the 15 day time
period, the date complainant raised these issues with the Commission,
July 23, 1999 (the date the administrative hearing was requested),
shall be deemed to be the date of initial EEO contact unless he has
already initiated contact with an EEO counselor regarding these issues,
in which case the earlier date should serve as the EEO counselor contact
date. Cf. Alexander J. Qatsha v. Department of the Navy, EEOC Request
No. 05970201 (January 16, 1998).
3It appears that because complainant is a nonbargaining employee, the
agency was required to give him at least seven-days notice.
4The AJ also found that complainant's claim of being subjected to
offensive language failed to state a claim because complainant did not
show how the obscene language resulted in a personal harm or loss or
otherwise rendered him aggrieved. We note, however, that complainant
contends that the offensive language was part of a general pattern of
harassment. In harassment cases, the pattern aspect of a complainant's
allegations should not be ignored where an analogous theme unites the
matter of which complainant complained. See Meaney v. Department of
the Treasury, EEOC Request No. 05940169 (November 3, 1994).