05991119
09-19-2001
Laurel Pathman, Complainant, v. Christine Todd Whitman, Administrator, Environmental Protection Agency, Agency.
Laurel Pathman v. Environmental Protection Agency
05991119
September 19, 2001
.
Laurel Pathman,
Complainant,
v.
Christine Todd Whitman,
Administrator,
Environmental Protection Agency,
Agency.
Request No. 05991119
Appeal No. 01975501
Agency No. 94-0054-R9
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Laurel
Pathman v. Environmental Protection Agency, EEOC Appeal No. 01975501
(July 29, 1999). EEOC Regulations provide that the Commission may, in
its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant alleged that she was discriminated against due to a hostile
work environment based upon her sex when: (1) in November 1994, she
requested approval to attend a training course and her supervisor
(AS) accused her of wanting to start her own consulting firm; (2) in
January 1994, AS shouted at her for comments she made at a meeting; (3)
due to prior events, on January 25, 1994, she was informed that she was
being terminated from her probationary position in the Air Compliance
Branch, Air and Toxics Division, resulting in her resignation due to
constructive discharge; and (4) on January 27, 1994, complainant was
told by a co-worker that AS informed him of remarks made by complainant
disapproving of his lifestyle. Complainant's allegation (5) stated
that on January 25 or 26, 1994, she was informed that due to her filing
an EEO complaint, she would not be provided a letter of recommendation;
she ultimately received a letter issued later than expected whose content
had been changed from its original form.
Following the agency's investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). During the pre-hearing
stage of the proceedings before the AJ, counsel for the agency sought
to depose complainant and informed complainant's counsel that the
deposition would take at least one day to complete. The parties did
not agree on the length of the deposition, but the agency's attorney
informed complainant's counsel that two and one-half hours would
not be enough time to conduct the deposition. On August 8, 1996,
the agency's counsel deposed complainant for two and one-half hours,
but the deposition was then discontinued by complainant's counsel,
even though the parties agreed that the agency's counsel did not have
sufficient time to question complainant on the matters alleged in the
complaint. Pursuant to the agency's motion to dismiss the case, the AJ
issued an Order dated September 6, 1996, remanding the case back to the
agency for issuance of a final agency decision (FAD) without a hearing,
stating that complainant's termination of the deposition was evidence
that she failed to cooperate with the agency's pre-hearing discovery
request to fully depose complainant. On October 10, 1996, the AJ denied
complainant's request for reconsideration on the basis that she did not
present any new basis for overruling his previous order.
The agency's FAD found that complainant failed to establish discrimination
on any of her allegations. On appeal, complainant argued that the agency
erred in not affording her the right to a hearing before an EEOC AJ prior
to issuing its FAD. The Commission found that the AJ did not abuse
his discretion in remanding the case to the agency for a FAD without
a hearing. In so finding, the Commission noted that the AJ was within
his discretion in canceling the hearing and remanding the case to the
agency for a FAD upon his determination that complainant and her counsel
willfully did not fully cooperate with the agency's discovery request.
Addressing the merits of complainant's allegations, the Commission found
that for each of the incidents of alleged harassment, discrimination
or reprisal cited by complainant, she either failed to substantiate her
allegations or the agency set forth a legitimate reason for the action.
The Commission thus discerned no basis to disturb the agency's findings
of no discrimination or reprisal, and affirmed the agency's FAD.
In her request for reconsideration, complainant contends that the
Commission erred in affirming the agency's decision to not afford
complainant a hearing before an AJ, and further that the cancellation of
the hearing was not warranted. Addressing complainant's contentions,
the Commission initially notes that it was the AJ, and not the
agency, who found that complainant's termination of the deposition
was evidence that she failed to fully cooperate with the agency's
pre-hearing discovery request to fully depose complainant. As such,
the AJ canceled complainant's hearing and remanded the case to the
agency for the issuance of a FAD. The Commission again finds that the
AJ did not abuse his discretion in remanding the case to the agency for
a FAD without a hearing. The AJ remanded the case to the agency for a
FAD based on his finding that complainant failed to cooperate with the
agency's discovery request. In general, an AJ is given wide latitude
in directing EEOC administrative hearings. See 29 C.F.R. � 1614.109(c);
Blakemore v. Department of the Army, EEOC Appeal No. 01972875 (March
17, 1999). The AJ is charged with regulating the course of the hearing
and the number of witnesses providing testimony, as well as ensuring the
relevancy of all testimony. Moreover, the Commission has held that,
in certain circumstances, an AJ has the authority to cancel a hearing
and remand a case for a FAD where the complainant fails to cooperate at
the hearing stage. Schneider v. Department of the Treasury, EEOC Appeal
No. 01933192 (December 16, 1993), request to reopen denied, EEOC Request
No. 05940298 (December 9, 1994). In the instant case, the Commission
found that the AJ was within his discretion in canceling the hearing and
remanding the case to the agency for a FAD upon his determination that
complainant and her counsel willfully did not fully cooperate with the
agency's discovery request.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01975501 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. You have the
right to file a civil action in an appropriate United States District
Court within ninety (90) calendar days from the date that you receive
this decision. 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.
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 19, 2001
__________________
Date