01A11414_r
03-06-2002
Rhonda McManus, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rhonda McManus v. United States Postal Service
01A11414
March 6, 2002
.
Rhonda McManus,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11414
Agency No. 1-G-772-0055-98
Hearing No. 330-99-8137X
DECISION
Complainant timely initiated an appeal from a final agency action
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. Complainant alleges she was discriminated against
on the bases of sex (female) when:
On March 18, 1999, complainant was not allowed to resume work as a Letter
Sorting Machine (LSM) operator.<1>
For the following reasons, we vacate and remand the agency's final
action.
The record reveals that during the relevant time, complainant was
employed as a mail processor at the agency's North Houston Mail Processing
facility.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint on July 21, 1998.
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 assumed that complainant established a prima facie case of
sex discrimination and found that complainant failed to show that
the agency's articulated reasons for its actions were pretextual.
In his decision, the AJ stated that �Complainant and a[n] [agency]
representative signed a Resolution on April 2, 1998, stating that the
Complainant would �be given consideration to work the LSM when practible'
[sic]. Complainant requested to work as a LSM Operator but the request
was denied. As complainant has failed to show that the agency's reasons
were pretextual, complainant's discrimination claim must fail.�
The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ erred when he denied
complainant's request to amend her complaint on August 26, 1999,
to include a claim of sexual harassment. With regard to the merits of
her complaint, complainant challenges the AJ's acceptance of the Alleged
Responsible Management Official's (ARMO's) testimony. Complainant states
that she was denied the chance to submit evidence on the record on her
behalf or to cross examine the testimony of the ARMO. In her brief in
support of the appeal, complainant claims that the ARMO was untruthful
in his statement that comparative employee 1 did not work under his
supervision at any time. Complainant states that she and comparative
1 worked together in automation in February 1999.
The agency stands on the record and requests that we affirm its final
action implementing the AJ's decision.
EEOC Regulation 29 C.F.R. � 1614.106(d) states that after a request
for a hearing, a complainant may file a motion with the administrative
judge to amend a complaint to include issues or claims like or related
to those raised in the subject complainant. Upon review, we find that
the AJ properly denied complainant's request to amend her July 21, 1998
complainant to include an allegation of sexual harassment. The Commission
finds that complainant's December 27, 2000 sexual harassment claim is
not like or related to the issue of her not being allowed to resume work
as a LSM operator.
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.
After a careful review of the record, the Commission finds that the AJ
erred when he determined that there was no genuine issue of material fact
with regard to the denial of complainant's return to LSM operator. At the
outset, the Commission notes that it is unable to determine what the AJ
considered the agency's reasons for the action at issue. Although the
AJ denied the agency's July 1999 motion for summary judgment, based on
the fact that a decision was ultimately issued without a hearing and the
lack of clarity of the AJ's decision, the Commission will briefly address
the issues raised in the agency's July 1999 summary judgment motion.
We note that in its motion for summary judgment, the agency argued that
the two comparison employees cited by complainant do not nor have they
ever worked under the ARMO. The record contains an affidavit from the ARMO
in which he states that complainant was converted to a career appointment
on September 27, 1998, and assigned to Pay Location 341. Also in this
affidavit, the ARMO stated that the two comparative employees were �not
assigned to Pay Location 341 and they did not work under my supervision
at no time.�
The record contains a PS From 50 entitled �Notification of Personnel
Action� which states that complainant was converted to a career
appointment effective September 27, 1997, and assigned to Pay Location
340. The record also contains a PS Form 50 which shows that complainant
became a full time employee effective August 15, 1998, also in Pay
Location 340. In addition, the record contains a document entitled
�Human Resources Information System� for comparative employee 1 which
indicates that he was assigned to pay location 340, Tour 3, Level 04.
We note that the record contains no evidence reflecting the pay location
of the second identified comparative employee.
Upon review, while the Commission makes no judgment about the veracity or
motivation of the ARMO in denying complainant's return to the LSM operator
position, we do note the apparent conflict in the testimony regarding
the cited comparative employees and find that this is precisely the type
of evidence that is appropriate for cross-examination. EEOC Regulations
plainly indicate that the hearing process is intended as a continuation
of the investigative process and is 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. Truncation of this
process, while material facts are still in dispute and the credibility
of the ARMO, including other witnesses, is still ripe for challenge,
improperly deprives complainant of a full and fair investigation of
his claims. Therefore, the Commission finds that the AJ erred when he
issued his decision without a hearing with regard to complainant's claim
that he was denied the opportunity to resume work as a LSM operator.
Therefore, we shall remand the matter so that complainant may be afforded
a hearing on the matter.
Accordingly, the agency's final action is VACATED and the complaint
is REMANDED to the agency in accordance with this decision and the
ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate 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 6, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Complainant originally included race as a basis of discrimination in
her formal complaint, however, she later withdrew this basis in a letter
dated September 2, 1999.