01A13592
03-26-2002
Diana L. Coy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area) Agency.
Diana L. Coy v. United States Postal Service
01A13592
March 26, 2002
.
Diana L. Coy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area)
Agency.
Appeal No. 01A13592
Agency Nos. 4B-120-0062-99; 4B-120-0079-99
Hearing No. 160-A0-8190X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning her complaint of unlawful 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. For the following reasons, the Commission reverses
and remands the agency's final order.
The record reveals that during the relevant time, complainant was
employed as a Window/Distribution Clerk at the agency's Binghamton,
New York, facility. Complainant sought EEO counseling and subsequently
filed formal complaints alleging that she was discriminated against on
the bases of sex (female) and reprisal for prior EEO activity when:
she became aware on April 7, 1999, that management intentionally
abolished a Window Clerk position knowing that she would be the senior
bidder for the position; and
during the period of 1994 to June 11, 1999, she was not placed on an
Officer-In-Charge (OIC) assignment.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of discrimination, noting that, with regard to the elimination
of the Window Clerk position, complainant failed to prove that she
applied for and was denied the position. The AJ also concluded that
complainant could not demonstrate that the person who vacated the Window
Clerk position did so because of complainant's protected activity,
and neither did the agency decide to eliminate the position because of
complainant's prior protected activity. The AJ then concluded that
complainant failed to demonstrate by a preponderance of the evidence
that she was discriminated against under any of her alleged bases.
The agency's final action implemented the AJ's decision.
On appeal, complainant contends, among other things, that the AJ
erred in granting summary judgment as several material facts remain
in dispute. The complainant also argues that the AJ misapplied the
law and misconstrued the facts surrounding the Window Clerk position.
The AJ opined that complainant's argument regarding not applying for
the position because it was never posted so she could apply �calls for
hindsight speculation. . . .� Complainant argues this is incorrect
at the very least, and legal error at the very most. The complainant
further argues that the AJ did not view her position in the most favorable
light, as required on summary judgment. Finally, the complainant argues
that the AJ improperly did not address the issue of denial of training,
which complainant raised with the EEO counselor. The agency stands on
the record and requests that we affirm its final action implementing
the AJ's decision.
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 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 does not
sit as a fact finder. Id. 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. A disputed 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 under Title VII, 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).
After a careful review of the record, we find that the AJ erred when she
concluded that there was no genuine issue of material fact in this case.
The AJ further erred in not believing the evidence of the non-moving
party, complainant, or drawing all justifiable inferences in complainant's
favor, as required on summary judgment. In finding no discrimination,
the AJ relied on the representations of management officials as provided
in their affidavit testimony over that of complainant's allegations.
This is particularly noteworthy, given that management officials
changed their position as to why the position was eliminated. Further,
a reasonable fact finder, when viewing the record in the light most
favorable to complainant, could find that the Window Clerk position was
abolished in an effort to prevent complainant from occupying the position.
Further, we find that the exclusion of the issue of denied training
was foreseeable as complainant did not include this issue in her formal
complaint. The record indicates, however, that this issue was counseled,
so complainant may amend her complaint to include this issue and the AJ
will thus address it.
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(d) and (e). �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 her 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, we find that there
are simply too many unresolved issues which require an assessment as
to the credibility of the various management officials, co-workers,
and complainant, herself.
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 reverses the
agency's final action and remands the matter to the agency in accordance
with this decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the New York EEOC 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 (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
March 26, 2002
__________________
Date