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.