Laurel Pathman, Complainant,v.Christine Todd Whitman, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity CommissionSep 19, 2001
05991119 (E.E.O.C. Sep. 19, 2001)

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