Filing an EEOC Claim with multiple discriminations I’m sorry to inform you, helps the agency more than it helps the complainant, because the agency can work to reduce your award from the getgo. If they can remove one of your claims, it will reduce the award.
In this EEOC claim, almost all of the discrimination’s were found not to be discrimination’s, except the disability discrimination.
Her complaint of unlawful employment discrimination on the bases of:
race (Black)
national origin (Black)
sex (female)
reprisal (prior EEO activity)
physical disability (bilateral carpal tunnel syndrome with ulnar neuropathy)
Donnett G. Jenkins v. United States Postal Service
01980547
March 28, 2000
Donnett G. Jenkins, )
Complainant, )
) Appeal No. 01980547
v. ) Agency No. 1A106104094/4294
) Hearing No. 160-97-8549X/8550X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Northeast/New York Metro Region), )
Agency. )
)
DECISION
Complainant filed a timely appeal from a final agency decision (FAD) concerning her complaint of unlawful employment discrimination on the bases of race (Black), national origin (Black), sex (female), reprisal (prior EEO activity), and physical disability (bilateral carpal tunnel syndrome with ulnar neuropathy), in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791, et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. § 1614.405).
The following decision VACATES AND REMANDS the agency’s FAD.
The record reveals that during the relevant time, complainant was employed as a Distribution (Letter Sorting Machine) Clerk at the agency’s Mount Vernon, New York postal facility. She filed two formal complaints against the agency, claiming that she was discriminated against on the bases of race, sex, national origin, and reprisal as follows:
(1) on July 15, 1994 she was charged with AWOL (absence without leave), and on July 25, 1994, her supervisor (S) failed to conduct an exit interview in connection with her removal; and
(2) on June 17, 1994, she did not receive payment for sick leave as she had requested, and her employment was terminated with a Letter of Removal (LOR) which charged her with abusive language toward S, and failure to meet attendance requirements.
At the conclusion of the investigation of these complaints, complainant was provided with a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). The AJ ordered that the case be remanded back to the agency for a supplemental investigation upon her finding that complainant had also claimed discrimination on the basis of disability, and also raised the issue of the agency’s failure to accommodate this disability by refusing to excuse her use of leave. At the conclusion of this supplemental investigation, the AJ rendered a Recommended Decision (RD) without a hearing. Assuming arguendo that complainant had established a prima facie case of discrimination on all of the claimed bases, the AJ then concluded that the agency articulated legitimate, nondiscriminatory reasons for its failure to timely approve the July 15, 1994, leave request, instead charging complainant with AWOL, namely that due to the hectic pace on the day the request was submitted, and the Manager’s rush to leave on vacation, the approval was delayed and AWOL was charged as a result. The AJ additionally found that the agency articulated a legitimate nondiscriminatory reason for the Manager’s failure to conduct an exit interview when complainant was terminated, when he testified that he did not conduct these interviews for any departing employees. The AJ then held that complainant failed to submit evidence to show that these reasons were a pretext for discrimination, and recommended a finding of no discrimination. Again assuming that a prima facie case of discrimination had been established on all bases, the AJ found that the agency proffered a legitimate nondiscriminatory reason for its failure to pay complainant for her sick leave on the date in question, noting that the record showed that a Data Clerk error was responsible, and not S. Again, the AJ recommended a finding of no discrimination finding that complainant failed to produce any evidence to suggest that the agency’s reasons were a pretext for discrimination.
Regarding her removal, the AJ determined complainant was unable to identify similarly situated employees who were treated more favorably when they used abusive language toward their supervisors, noting that none of the comparators identified by complainant had a disciplinary record similar to complainant’s. The AJ also held that although complainant established a prima facie case of reprisal regarding the abusive language charge, she failed to show that reprisal was a factor in the agency’s decision to terminate her employment for this reason. The AJ additionally determined that this charge, standing alone, absent the showing of a discriminatory motive, was sufficient to justify complainant’s removal.
Accordingly, the AJ recommended a finding of no discrimination on this issue. However, with respect to the charge that complainant used excessive leave, the AJ recommended a finding of discrimination, holding that the agency failed to accommodate complainant’s disability when it did not excuse these absences. Based on this finding of discrimination, the AJ ordered the agency to: pay complainant for all leave, medical expenses and associated costs resulting from its failure to accommodate up to the effective date of removal; to pay reasonable attorney fees; and to post a Notice regarding this finding. The FAD adopted that part of the RD which recommended findings of no discrimination, but rejected the AJ’s finding of discrimination regarding the failure to accommodate issue. Furthermore, on appeal, the agency contends that the AJ erred when she failed to conduct a hearing on this issue, arguing that issues of material fact were in dispute regarding the existence of a nexus between complainant’s disability and her leave requests, and whether the agency knew, or should have known that this leave was being requested as an accommodation. The agency also argues that it was not given an opportunity to present an undue hardship defense. In her appeal, complainant also argues that the AJ erred in failing to conduct a hearing given the complexity of the issues and the credibility dispute regarding whether she used abusive language as charged, and also whether this was sufficient to justify her removal in light of a union arbitration decision that it was not.<2> However, regarding complainant’s removal, we find that the AJ erred in determining that there were no genuine issues of material fact. 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. arrener, 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 note that the hearing process is intended to be an extension of the investigative process, designed to “ensur[e] that the parties have a fair and reasonable opportunity to explain and supplement the record and to examine and cross-examine witnesses.” See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 6-1 (November 9, 1999). “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). Although we need not now determine whether complainant is a qualified disabled individual under the Rehabilitation Act, even assuming that she is for the purpose of analysis, we find that the AJ erred in failing to conduct a hearing in this case. Specifically, in reviewing the record, we agree with the agency that it is a matter of dispute as to whether complainant’s many leave requests were related to her claimed disability. Although the AJ finds that this nexus exists, our review of the record fails to confirm this because many of the leave requests do not indicate a reason for the leave. Testimony of both complainant and S would be pertinent to this inquiry as complainant claims that she discussed her need for leave on several occasions with S. Moreover, the AJ includes in her analysis the leave used by complainant in connection with a neck and shoulder injury, in addition to her carpal tunnel disability, but does not address whether the former is a disability within the meaning of the Rehabilitation Act. Further development of the record on this issue is necessary as a preliminary step to defining the disability at issue, and in determining whether complainant is an individual with a disability under the Rehabilitation Act, all of which must be ascertained prior to determining whether there is a nexus between complainant’s leave and her “disability.” Additionally, further development is necessary, via testimony of the responsible agency officials and complainant, as to whether the agency was on notice, either actually or constructively, that complainant’s use of leave constituted a request for an accommodation. See McNeil v. U.S. Postal Service, EEOC Appeal No. 05960436 (July 28, 1998). Furthermore, a hearing is needed in order to provide the agency with an opportunity to set forth an undue burden defense. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, No. 915.002 (March 1, 1999). We also find that a hearing is necessary in light of the credibility issues involving the abusive language charge, where the complainant denies engaging in this conduct as charged, and where the AJ relies only on the credibility determination, based on “witness demeanor,” in the union arbitration proceeding as a means of resolving this evidentiary conflict. Further development is also needed to address the issue of whether this charge, if proven, is sufficient to justify complainant’s removal in light of the arbitration determination that it is not. Additionally, we find that a hearing should also be conducted regarding complainant’s claims of discrimination regarding the handling of her leave and S’s failure to conduct an exit interview, as more fully referenced above, so that the entire matter of this complainant can be considered by the AJ. In summary, there are simply too many unresolved issues which require an assessment as to the credibility of the various management officials and complainant herself. Therefore, judgment as a matter of law on these issues should not have been granted.
Accordingly, we VACATE the FAD in pertinent part, and REMAND this 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. § 1614.409).
STATEMENT OF RIGHTS – ON APPEAL
RECONSIDERATION (M1199)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. § 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. § 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R1199)
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:
March 28, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 Equal Employment Assistant
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the present appeal. The regulations, as amended, may also be found at the Commission’s website at WWW.EEOC.GOV.
2 The arbitration decision held that the removal was justified based on the abuse of leave charge, but not on the abusive language charge.
