CONUNDRUM: No Evidence, No Hearing; No Hearing, No Evidence

How does a discrimination victim get evidence of discrimination when his or her case is summarily dismissed without a hearing?

This was the issue in a case before the EEOC where a Maintenance Mechanic filed a complaint against the U.S. Postal Service in Pontiac, Michigan that alleged race (white), sex (male) and age discrimination (age 59).  The EEOC upheld the dismissal of the case by an Administrative Law Judge (ALJ) without a hearing.

The mechanic said he was rated ineligible for promotion following a pair of interviews by two three-member panels on July 18, 2012.  (At least two panelists served on both panels.)

According to the EEOC:

“When asked by the investigator why he believed that the panels took his race, sex, and age into account when interviewing him, Complainant responded with generalized assertions, such as “I was told that all white males were passed over,” “most of the women passed but none of the men,” and “all employees that passed were younger than me.”

The EEOC ruled the mechanic failed to provide evidence “of any of the indicators of pretext described above. He has not submitted any sworn statements from other witnesses or documents that contradict the explanation provided by the four panelists or which call their veracity into question.”

The EEOC’s decision points up the conundrum facing many workers who are victims of discrimination – how do you get evidence when your case is summarily dismissed?

Had the case proceeded, the mechanic might have engaged in discovery, which requires the employer to turn over evidence that reveals the employer’s motivation. (Of course, this could be difficult without an attorney.) For example, the mechanic could demand to know the ages of those deemed eligible for promotion. If the successful applicants were all under age 40 and the unsuccessful applicants were all over age 40,  that would be evidence of age discrimination.

If the ALJ and the EEOC had ordered a hearing, the mechanic could have called witnesses to elicit testimony regarding their motivation.

Of course, there was evidence  of discrimination that appears to be have  been completely disregarded by the ALJ and the EEOC – the complainant’s observations and testimony. The EEOC dismissed his testimony as “generalized assertions.”

The EEOC states it cannot “second guess” an employer’s personnel decisions unless the complainant produce evidence of pretext – or evidence that shows the employer is attempting to cover up illegal discrimination. The EEOC listed several types of evidence to show discrimination:

  • Discriminatory statements or past personal treatment attributable to one or more of the panelists.
  • Comparative or statistical data revealing differences in treatment across racial, gender or age-related lines.
  • Unequal application of Agency policy.
  • Deviation from standard procedures without explanation or justification.
  • Inadequately explained inconsistencies in the evidentiary record.

Technically, a case should not be dismissed unless there are no triable issues of fact.

The EEOC recently published the decision using a pseudonym for the complainant. The decision is Erick K. v. Megan J. Brennan, U.S. Postal Service, Appeal No. 0120142888.


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