0120060463
02-15-2007
Hack Koo Lee, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Hack Koo Lee v. Department of the Army
0120060463
2-15-07
.
Hack Koo Lee,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120060463<1>
Agency No. AQFZPI0203C0020
Hearing No. 370-A3-X2149
DECISION
Complainant timely initiated an appeal from a final agency order
concerning his 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. 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 during the relevant time, complainant was employed
as a Recreation Aid at the agency's Camp Greaves Recreation Center
in Korea. Complainant sought EEO counseling and subsequently filed a
formal complaint on April 16, 2002, alleging that he was discriminated
against on the basis of national origin (Korean) and in reprisal for
prior EEO activity when:
(1) on April 5, 2002, he received a Notice of Termination.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
finding no discrimination. The AJ made the following findings of fact:
Complainant and his first-line Supervisor (S1) had a strained relationship
from the conception of complainant's employment. AJ Decision at 5.
Complainant was hired on January 24, 2002, with a 12 month probationary
period. Id. On March 11, 2002, complainant sought EEO counseling,
alleging that S1 subjected him to a hostile work environment. Id.
Complainant received a Notice of Termination on April 5, 2002, during
his probationary period, which was signed by S1. Id. This Notice
cited eight specific examples of non-performance or conduct issues that
occurred between January 31, 2002 and April 3, 2002. Id. The S1 also
summarized that she felt that complainant had �difficulties working with
me, your supervisor, coping with the responsibilities required of [him]
as a Recreation Aid at the Camp Greaves Recreation Center and [his]
salary . . . .� Id.
The AJ concluded the agency proffered legitimate, nondiscriminatory
reasons for terminating complainant. Id. at 6. The AJ found that
�the undisputed evidence of the record reflects that the agency set
forth its reasons for terminating complainant, and its explanation
is non-discriminatory and legally sufficient, and that complainant has
offered, and the record contains, no evidence of pretext. Complainant has
offered no evidence in response to my motion indicating he was treated
differently than provisional employees of a different protected status
for committing similar acts of misconduct or non-performance.� Id.
Ultimately, the AJ concluded that complainant failed to establish that
he was discriminated against. Id. The agency's final action implemented
the AJ's decision.
On appeal, complainant makes arguments regarding incidents which were
not part of the formal complaint at issue in this case. Complainant also
argues that one of the reasons given for his termination was that he was
absent without leave (AWOL). Complainant explains that he was not AWOL
because the AWOL charge was for time beyond his duty hours.
As a preliminary matter, we note that on appeal, we review the FAD issued
without a hearing de novo. 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). 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's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. 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. at 255. An 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,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
The record revels the following procedural history. It appears that
complainant originally requested EEO counseling on March 11, 2002,
regarding whether S1 subjected him to a hostile work environment when:
(1) on March 2, 2002, the S1 told him he could report her to the
Inspector General's Office, EEO, or Morale, Welfare and Recreation
Headquarters, however, he should remember that he is still on probation;
sometime in January 2002, the S1 failed on three different occasions to
respond to his inquiries regarding the hourly salary for the position
of NF-0189-1, Recreation Aid, that she selected him for;
the S1 constantly asked him to perform duties outside of his job
description; and
the S1 constantly left him unsupervised to perform his duties.
The EEO Counselor wrote a report on these incidents after interviewing
complainant and the S1. On April 5, 2002, complainant was issued a Notice
of Final Interview and was given the right to file a formal complaint.
On April 16, 2002, complainant filed a formal complaint alleging only
the termination claim at issue in this case.<2> Although complainant was
counseled regarding the termination claim, the agency accepted the claim
in a letter dated June 13, 2002. ROI, Exh. C-2. The investigation was
conducted on only the termination claim. In the Report of Investigation
(ROI), the investigator noted that an onsite investigation was schedule
for August 15, 2002. ROI at 3. The ROI also notes, however, that
numerous attempts to get a timely transcript of the testimony received
during the onsite investigation were fruitless. Id. When the transcript
was nearly ten weeks overdue, the agency's Director, Equal Employment
Opportunity Compliance & Complaints Review advised the agency to process
the case and write up the ROI without the transcript. Id. The record
does not contain the transcript of the onsite testimony.
After a careful review of the record, we find that the AJ erred in
issuing a decision without a hearing in this case. Specifically, we find
that the record is not sufficiently developed for summary disposition.
Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
The record is completely lacking with regard to any statements from
complainant or S1 regarding the claim of termination. The only relevant
information from the S1 is the Notice of Termination. We note that there
was no pre-complaint investigation on the termination claim and that the
record does not contain the transcript from the onsite investigation.
Moreover, we note that the lack of testimony by either complainant or
the agency was not the fault of complainant; rather, the investigator
was unable to obtain the transcript despite numerous attempts to do so.
Therefore, we find that the record is insufficient to render a decision
without a hearing.
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, in
appropriate instances, to examine and cross-examine witnesses. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 7-1 (November 9, 1999); see also 29 C.F.R. � 1614.109(e).
In this case, we find that the record is completely lacking in evidence
with regard to the termination claim. 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 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 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
___2-15-07_______________
Date
1 Due to a new data system, your case has been redesignated with the
above referenced appeal number.
2 We find that the agency appropriately limited the claim in the instant
case to only the termination claim. Although complainant received
counseling for other claims, complainant was notified in his acceptance
letter that he could contest the framing of his claim accepted by the
agency. The evidence in the record demonstrates that complainant did
not do so. Therefore, the only claim at issue in this case is whether
complainant was unlawfully terminated in violation of Title VII.