David S. Eng, Complainant,v.Christine Todd Whitman, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity CommissionSep 18, 2002
01A10728 (E.E.O.C. Sep. 18, 2002)

01A10728

09-18-2002

David S. Eng, Complainant, v. Christine Todd Whitman, Administrator, Environmental Protection Agency, Agency.


David S. Eng v. Environmental Protection Agency

01A10728

September 18, 2002

.

David S. Eng,

Complainant,

v.

Christine Todd Whitman,

Administrator,

Environmental Protection Agency,

Agency.

Appeal No. 01A10728

Agency No. 99-0009-HQ

Hearing No. 100-A0-7467X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning his equal employment opportunity (EEO) 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., and

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. For the following reasons, the Commission reverses

and remands the agency's final order.

The record reveals that complainant was an Environmental Protection

Specialist, GS-13, at the agency's Analytical Operations Center of the

Office of Emergency and Remedial Response in the Superfund Program

of the Office of Solid Waste and Emergency Response, in Arlington,

Virginia. Complainant filed a formal EEO complaint on November 3, 1998,

alleging that the agency had discriminated against him on the bases of

race (Chinese), color (yellow), and disability (Mild Expressive Disorder

with Attention Deficit Disorder and Residual Language Based Learning

Disabilities) when:

In April 1998 his supervisor (S1) hampered all of his projects, limited

resources and communications, and gave him less responsibility and

trivial projects. The �highly visible and important� projects are

given to other employees;

S1 has cancelled or postponed many of his major work assignments,

without giving him a full explanation for such actions;

Since April 1998, management's harassment actions, which follow, have

been so severe that they are affecting his capability to perform his job:

all of his presentations, documents, requests and work, are extensively

reviewed and scrutinized;

during July 1998, S1 read his personal e-mail without his knowledge,

and scrutinized his telephone calls and official travel, which indicates

that she distrusts him;

S1 has limited other staff members communications with him and decreed

that all communication to him must go through her;

during a technology primer meeting on July 28, 1998, S1 tried to

disorient and rush him, and at an August 23, 1998 staff meeting, S1

cut him short in efforts to discredit and embarrass him;

S1 often cancels meetings without notice, such as on July 28, 1998; and

In reprisal for prior EEO activity, complainant was issued a letter of

warning on October 22, 1998, for performance problems and resistance

to his supervisor's direction.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing,

finding no discrimination.

The AJ found that complainant failed to establish a prima facie case

of disability discrimination because he failed to show that he is an

individual with a disability within the meaning of the Rehabilitation Act.

The AJ additionally found that complainant also failed to establish

a prima facie case of discrimination based on race and color. The AJ

further found that assuming, arguendo, that the events he complains of

occurred, complainant submitted no evidence, other than his assertion,

that those events were discriminatory. The AJ also found that complainant

failed to establish a prima facie case of reprisal because he submitted

no evidence that S1 was aware of his prior EEO activity. The agency's

final order implemented the AJ's decision.

On appeal, complainant contends that the AJ erred when she issued summary

judgment, in that there are genuine issues of material fact which justify

a hearing. The agency stands on the record and requests that we affirm

its final action implementing the AJ's decision.

As an initial matter we note that, as this is an appeal from a FAD issued

without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's

decision is subject to de novo review by the Commission. 29 C.F.R. �

1614.405(a). 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). 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. Complainant alleges,

and at least one co-worker agrees, that S1 harassed complainant based

on his race, color or disability. See e.g. Record of Investigation

(ROI), Ex. 12, p. 2 (�I observed [S1].... treat [complainant] in

a hostile manner such as telling him to shut up... I observed [S1]

treat other minorities similarly...�). The agency, however, denies

that discrimination motivated S1's conduct. Therefore, there exists a

genuine issue of material fact as to whether the actions complained of

were based on complainant's race, color and/or disability. Accordingly,

the AJ erred in issuing a decision without a hearing.

We note additionally, that in finding no discrimination, the AJ analyzed

the entire complaint, including the alleged harassing incidents,

under the theory of disparate treatment. A proper analysis for

complainant's harassment allegations is the law developed under the

theory of harassment. See Enforcement Guidance on Harris v. Forklift

Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).

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 simply too many

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.

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 order 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 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

September 18, 2002

__________________

Date

1 The 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.