01994156
12-21-2001
Daryl K. Harris, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area) Agency.
Daryl K. Harris v. United States Postal Service
01994156
December 21, 2001
.
Daryl K. Harris,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area)
Agency.
Appeal No. 01994156
Agency No. 4A-100-0178-97
Hearing No. 160-99-8226X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
(FAD), dated March 19, 1999, concerning his equal employment opportunity
(EEO) 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.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleges he was discriminated
against on the bases of disability (carpal tunnel syndrome, stress, and
hypertension) and reprisal (prior EEO activity), when on August 25, 1997,
following an alleged altercation, he was issued an emergency suspension,
and thereafter, removed from the agency effective, November 14, 1997.
BACKGROUND
Complainant was a Regular City Carrier (PS-05) assigned to the Franklin
D. Roosevelt Station, New York, New York facility. Believing he
was a victim of discrimination complainant sought EEO counseling and
subsequently filed a formal complaint on December 11, 1997. At the
conclusion of the investigation, complainant was informed of his right to
request a hearing before an EEOC Administrative Judge or, alternatively,
to receive a final decision by the agency. Complainant requested a
hearing before an AJ. On February 4, 1999, the AJ notified the parties
of her intent to issue Findings and Conclusions without a hearing.
Thereafter, on March 12, 1999, the AJ issued her Findings and Conclusions
concluding that the complainant offered no evidence that it was his
disabilities or his prior EEO activity, rather than his conduct, which
resulted in his emergency suspension and subsequent removal. Further,
the AJ found that the matter was appropriate for summary judgment.<2>
Complainant alleged that on August 25, 1997, he was accused by a co-worker
of threatening the co-worker on the work floor. Complainant alleged that
he was boxing up mail on his route when the co-worker came behind him and
made a comment about how the co-worker was tired of people talking about
the co-worker behind his back and that the co-worker would get them when
the co-worker goes outside. Complainant alleged that all complainant said
was �leave me the hell alone.� Complainant alleged that subsequently,
their Supervisor called the complainant and the co-worker to the time
cage, and the Postal Police were present. He alleged that the Supervisor
advised that complainant and the co-worker were suspended. However,
complainant further alleged that the co-worker, after walking over to
the Area Manager, was not suspended. Complainant alleged that he did not
threaten the co-worker or anyone else, and that he did not get loud with
anyone.<3> Complainant in his affidavit stated that Management wanted
to get rid of him because, on June 30, 1997, complainant was returned
to work after an Arbitrator's decision for a prior removal. The prior
removal is the subject of Harris v. United States Postal Service,
EEOC Appeal No. 01990082 (filed October 6, 1998). Complainant further
stated that Management had retaliated against him because they did not
like him and especially because he had gone to the EEO office for help.
Complainant did not address his allegation of disability discrimination
in his affidavit.
The Supervisor testified in his affidavit that the co-worker approached
him and stated that complainant had threatened him and that he felt
that complainant was going to beat him up. The Supervisor stated that
he approached complainant to question him and complainant got very
loud and stated that he was tired of this, and he was going to see the
Supervisor in court. The Supervisor stated that complainant's loudness
and threat caused a disturbance on the work floor. The Supervisor
placed complainant on Emergency Suspension for his actions and had
the Postal Police escort the complainant to their office to provide a
written statement regarding the incident. The Supervisor also stated
that he investigated the incident and obtained a written statement from
the co-worker and a Mailhandler. The Supervisor testified that there
was no need to suspend the co-worker, because the co-worker was the one
who was threatened. The Supervisor also stated that complainant and the
co-worker were involved in a prior altercation where both parties were
removed from the agency and then returned to duty on a last chance basis.
The co-worker stated in his affidavit that complainant made a threat
to wait for him after work and beat him up. The co-worker stated that
he felt that his life was in danger. The co-worker reported the threat
to the Supervisor, because he was afraid that the complainant would be
waiting for him when he finished his tour.
The Mailhandler witnessed the incident of August 25, 1997, and submitted
a written statement to the Supervisor. The Mailhandler did not submit
an affidavit, stating that her statement was sufficient. The statement
indicated that she overheard complainant tell the co-worker that he would
see him outside and that he was going to get him even if he stayed two
hours overtime.
The Manager, Customer Services, who was the former Tour Superintendent,
Postal Operations, at the facility, stated in her affidavit that she
concurred on the removal issued to the complainant based on the factual
information that was presented to her, complainant's past disciplinary
actions, and the seriousness of the infractions. She also contended
in her affidavit that it was the responsibility of all employees to
conduct themselves in a manner that did not adversely affect the agency
or infringe upon the rights of others. Further, it was contended that
management was responsible to make sure all employees were able to work
in a safe workplace without fear of violence or threats.
Complainant was issued the Emergency Suspension for threatening an
employee and for violations of the Joint Statement against violence
in the workplace.<4> The Notice of Removal charged the complainant
with violation of the agency's Standards of Conduct and creating a
disturbance in the workplace. The Notice of Removal stated that the
following elements of the complainant's past record had been considered
in arriving at this decision:
08/25/97 - Emergency Placement in an Off-Duty Status - 1. Threatening
an employee.
2. Violation of Joint Statement against violence in the workplace.
08/02/96 - Notice of Removal Modified to a Last Chance Basis - 1. Failure
to follow instructions. 2. Being disrespectful to your supervisor.
3. Exposing your penis on the work floor.<5>
07/12/96 - Emergency Placement in an Off-Duty Status - 1. Engaging in
an act of misconduct.
01/25/96 - Notice of Suspension of 7 Days - 1. Failure to follow
instructions of your supervisor. 2. Being absent from your place of
assignment without permission (AWOL).
The AJ, having assumed, arguendo, that the complainant had established
a prima facie case of discrimination based on his disabilities
and/or reprisal, found that the agency had articulated legitimate,
nondiscriminatory reasons for the disciplinary action in that the
complainant violated USPS Standards of Conduct and created a disturbance
in the workplace. The AJ also found that the complainant had not offered
evidence that it was his disabilities or his prior EEO activity, rather
than his conduct, which resulted in his suspension and subsequent removal.
The agency's final decision implemented the AJ's decision.
CONTENTIONS ON APPEAL
Complainant submitted a May 20, 1995, U.S. Department of Labor letter
accepting an occupational disease worker's compensation claim for
left lateral epicondylitis and a doctor's note, dated June 14, 1995,
stating that the complainant should be excused on June 15, 1995, due to
uncontrolled hypertension due to acute stress. Complainant also submitted
information from his earlier EEO case, EEOC Appeal No. 01990082, supra.
The agency contends that the complainant's submission on appeal appears
to relate more to a prior complaint and appeal than the instant case.
The agency comments that the adverse action in the instant appeal should
be distinguished from the personnel action in EEOC Appeal No. 01990082.
The agency requests that we affirm its final decision.
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 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).
In the instant case, the AJ, concluded there was no genuine issue of
material fact as to the agency's articulated legitimate, nondiscriminatory
reasons for the issuance of the Emergency Suspension and the Notice of
Removal. The AJ concluded that the Emergency Suspension was issued due
to complainant threatening an employee and for violations of the Joint
Statement against violence in the workplace. The Notice of Removal
was issued to complainant for violation of the agency's Standards of
Conduct and creating a disturbance in the workplace, as well as the other
matters mentioned above. The AJ concluded that the complainant offered
no evidence that his disabilities or his prior EEO activity, rather than
his conduct, resulted in the agency's actions. The AJ noted that the
complainant did not address his allegation of disability discrimination.
For the following reasons, we vacate and remand the agency's FAD.
After a careful review of the record, we find that the AJ erred in
granting summary judgement, when she did not consider complainant's
denial of the acts and behavior which triggered the agency's action in
issuing the emergency suspension and removal. The complainant denied
that he threatened the co-worker or anyone else, and denied that he was
loud with anyone. These statements directly conflict with the statements
of management and co-workers. Complainant is arguing that he didn't do
anything that could be construed as misconduct which could lead to the
agency's actions. The complainant also stated that the co-worker was
not disciplined for his actions, which raises an issued of disparate
treatment. These are material facts relevant to complainant's claim
of reprisal.
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, there are unresolved
issues which require an assessment as to the credibility of the various
management officials, co-workers, and complainant, himself. Therefore,
judgment as a matter of law for the agency should not have been granted
as to complainant's claim.<6>
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 agency shall submit to the Hearings Unit of the New York 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 Hearings Unit. Thereafter, the Administrative
Judge shall issue a decision on the claim of reprisal 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
December 21, 2001
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 The AJ noted that the complaint was initially remanded to the Agency
for processing under the mixed-case procedures, and on January 6, 1999,
was returned for a hearing, substantiating that complainant was not a
preference eligible employee with appeal rights to the Merit Systems
Protection Board.
3 Complainant alleged that he taped this event. A transcript is
contained in the record.
4 Joint Statement on Violence and Behavior in the Workplace, dated
February 14, 1992.
5 In EEOC Appeal No. 01990082, complainant alleges he was discriminated
against on the basis of reprisal for prior EEO activity when: (1) on
July 2, 1996, he was given an Emergent Suspension for exposing his penis
on the workroom floor and (2) on August 14, 1996, he was subsequently
issued a Notice of Removal. A separate decision will be issued in EEOC
Appeal No. 01990082.
6 Since we are remanding this matter, we decline to address complainant's
disability allegations at this time.