Erickson v. U.S. Environmental Protection Agency, 2003-CAA-11 (ALJ July 22, 2003)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

Issue Date: 22 July 2003

CASE NUMBER: 2003-CAA-11

IN THE MATTER OF

SHARYN A. ERICKSON,
    Complainant

    v.

U.S. ENVIRONMENTAL PROTECTION AGENCY,
REGION IV, ATLANTA, GEORGIA &
EPA INSPECTOR GENERAL
    Respondents

   On July 3, 2003 and July 11, 2003, Counsel for Complainant filed a Renewed Motion for Summary Decision and Motion for Default Judgment. On July 14, 2003, Complainant's Counsel filed a Motion to Cancel the July 28, 2003 hearing. Counsel for Respondent filed a response to Complainant's renewed motion for summary decision on July 7, 2003.

   In its's reviewed motion for summary decision, Complainant contends that Respondent offered no facts at the May 13 through 16, 2003 hearing, to rebut the specific allegations in its amended sworn complaint, and thus, a partial summary decision should be granted awarding Complainant compensatory and punitive damages for Respondent's conduct in continuing to exclude Complainant from her long time contracting career field while idling, harassing, and denying flexi-place to Complainant. Complainant also contends that Respondent's filing a petition for review of the previous recommended decision and order (RDO) in Erickson 1 which issued on September 24, 2002 "...is not a means of declaring ‘open season on Sharyn Erickson' or vilifying her in public or intimidating her in private, asking about her bathroom breaks and continuing to marginalizing her authority in the work place." Further, Respondent advances no bona fide reason for not implementing any portion of the RDO order.

   Respondent replies that it has no obligation to implement any portion of the RDO while said decision is on appeal for the Administrative Review Board (ARB) because pursuant to 29 C.F.R. § 24.8(a) an Administrative Law Judges recommended decision is inoperative, unless and until, the ARB issues an order adopting the RDO. Complainant has the burden of proof as to claims of harassment, retaliation, and hostile environment. Respondent witnesses refuted Complainant's claims of harassment, retaliation and hostile environment by explaining among other things their efforts to assist Complainant in performing her duties as project-officer which efforts were rejected by Complainant who accused Respondent's employees of withholding information and hindering her ability to perform her job. Supervisor Ron Barrow denied all allegations of harassment and surveillance, including all allegations relating to Complainant's bathroom usage. Further, Respondent's Personnel Officer, Maurice Holmes, established Complainant's disqualification for consideration of contracting specialists jobs by her failure to include a copy of her college transcript with her application for said position.

   After reviewing the record of the May 13-16, transcript, 2003 hearing, I agree with Respondent that summary judgment is inappropriate because many of Complainant's allegations of hostile work environment and adverse employment actions were refuted by sworn testimony of Respondent's witnesses. Thus, there exist substantial and genuine issues of material fact which are in dispute and require a denial of Complainant's motion for summary decision and motion to continue hearing of July 28, 2003.

   Considering its motion for default judgment, Complainant asserts that Respondent failed to perform prompt computer searches, resulting in loss of critical April, 2003, e-mail back-up tapes. Other than asserting an intentional destruction of back-up tapes, Complainant failed to provide any information or evidence to support its allegations. According, this motion is denied.

      CLEMENT J. KENNINGTON
      ADMINISTRATIVE LAW JUDGE