Hack Koo Lee, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 15, 2007
0120060463 (E.E.O.C. Feb. 15, 2007)

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.