01A40787
08-22-2006
Cynthia Conley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Cynthia Conley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A40787
Hearing No. 360-A1-8305X
Agency Nos. 1G781003501; 4G780001700; 1G781008201; 1G781004402
DECISION
JURISDICTION
On November 13, 2003, complainant filed an appeal from the agency's
October 11, 2003 final order concerning her equal employment opportunity
(EEO) complaint alleging 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES
the agency's final order.
BACKGROUND
Believing she was a victim of discrimination, complainant contacted an EEO
Counselor and filed four formal EEO complaints, which were subsequently
consolidated, alleging that she was discriminated against in the terms
and conditions of her employment between October 1999 and March 2002,
on the bases of sex (female), disability (impairments: diabetes, ankle
injury and knee injury), age (D.O.B. 11/17/57), and in reprisal for
prior protected EEO activity.
Specifically, in Agency No. 4G780001700, filed February 9, 2000,
complainant alleged that she was discriminated against when: (a) On
October 8, 1999, she was denied light duty work; (b) On October 19, 1999,
she received a threatening message from her supervisor regarding accessing
his office; (c) On October 23, 1999, her request for permanent light duty
was denied; (d) On October 24, 1999, she was escorted out of the building
because no work was available; (e) During a meeting held on December 14,
1999, she was advised that she would be offered a position which met
her medical restrictions, however, the offer would require her to take a
cut in salary, and could result in termination if she did not qualify;
(f) On December 16, 1999, she was returned to work for four hours per
day only; and (g) On December 18, 1999, she was sent a message that she
would be required to submit a leave request for the remaining four hours
of her shift.
In Agency No. 1G781003501, filed February 1, 2001, complainant alleged
that she was discriminated against when: (h) On January 18, 2001, she was
issued a notice of removal due to her medical restrictions. In Agency
No. 1G781008201, filed August 27, 2001, complainant alleged that she was
discriminated against when: (i) On October 31, 2000, she was placed on
administrative leave; (j) On January 18, 2001, she received a notice of
removal; and (k) On February 18, 2001, she received a notice rescinding
the first notice of removal and another letter re-issuing the removal.
In Agency No. 1G781004402, filed June 20, 2002, complainant alleged that
she was discriminated against when: (l) She was advised that effective
March 29, 2002, her position was abolished, and she was required to
submit current documentation.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a telephonic hearing on August 15 and
18, 2003. The AJ stated for the record at the beginning of the hearing
that she was appearing telephonically, however, she did not offer any
explanation for doing so. Complainant's attorney objected to the fact
that the AJ was conducting a telephonic hearing, stating "I don't think
that it gives you adequate opportunity to judge the credibility of the
witnesses." In response the AJ merely stated "Okay. And your objections
are stated for the record." The AJ subsequently issued a bench decision
on September 19, 2003, finding no discrimination. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends, among other things, that the AJ erred
by conducting the hearing telephonically. She asserts that "[t]here
was no valid reason for the AJ not to attend as the AJ resides in San
Antonio, Texas, her office is in San Antonio, Texas, and the hearing
was being held in San Antonio, Texas." Complainant notes that her
counsel traveled from South Carolina, and the agency's counsel traveled
from Dallas, Texas in order to be present. Complainant also notes that
"[e]ven the Judge's ability to listen to the witness's tone of voice was
distorted by the telephonic proceeding. Similarly, there were a number
of occasions when the AJ repeatedly requested parties to speak up as
the phone did not provide a proper connection. Similarly, there were a
number of times the AJ began to speak but forgot she had muted the phone."
In its reply, the agency asserts that although complainant objected to
the telephonic hearing "the administrative judge was entitled to exercise
her discretion in that regard. [Complainant] did not have the right to
dictate the method of the hearing. The fact that the administrative judge
conducted the hearing by telephone did not prevent her from assessing
the credibility of the witnesses based on their voice tones and verbal
demeanor."
Initially, before the Commission, is the question whether in this appeal
the Administrative Judge properly conducted the hearing by telephone,
despite complainant's objection. The Commission has addressed this matter
in the case of Louthen v. United States Postal Service, EEOC Appeal
No. 01A44521 (May 17, 2006).1 After reviewing at length the history
and development of the administrative hearing, the Commission concluded:
... Considering the special weight given to an AJ's demeanor-based
credibility determinations, however, the Commission is persuaded that
the AJ should be afforded the maximum opportunity to observe the demeanor
of a witness. To that end, the Commission finds that, with the limited
exceptions set forth below, the conduct of an entire hearing by telephone
is not appropriate and should not occur.
The Commission recognizes that in exigent circumstances it may be
necessary to take the testimony of a witness, or to conduct an entire
hearing, telephonically. For instance, the parties or witnesses to
an action may be at far-flung locations and travel is impractical
for reasons other than mere inconvenience or expense to the parties,
e.g., a civilian witness has been deployed on military reserve duty.
Witnesses who are not Federal employees or who have left Federal service
and cannot be compelled to appear in person may nonetheless be willing
to testify telephonically. Taking testimony by telephone may be an
appropriate reasonable accommodation where a witness or party has a
disability that prevents him or her from participating in a hearing in
person. This is not an exhaustive list of the limited circumstances in
which a telephonic hearing or telephonic testimony may be warranted.
A telephonic hearing or testimony is permissible when the AJ determines
that such exigent circumstances require it and the AJ documents these
circumstances in the record. If exigent circumstances are not present,
a telephonic hearing (or telephonic testimony) may be conducted only if
the parties submit a joint request to the AJ. In such a case, prior to
the date of the hearing, the AJ must obtain a statement of consent from
both parties to the telephonic hearing or testimony, reflecting that
the parties have been informed of the limitations of taking testimony
telephonically. Further, the AJ must be satisfied that it is unlikely
that the credibility of any witness testifying telephonically will be
at issue. The parties' joint request as well as the AJ's ruling on them
must be documented in the record.
Louthen, EEOC Appeal No. 01A44521 (footnotes omitted).
In the case at hand, the record contains no evidence of the type of
exigent circumstances that Louthen requires. The parties and the
witnesses were all present in one location, and there is no evidence
to suggest that the AJ was unable to preside over the hearing in
person, particularly given that the AJ and the parties and witnesses
were all physically in San Antonio. Neither was participation in
a telephonic hearing voluntary on complainant's part. Indeed,
complainant voiced her objection to a telephonic hearing at the
outset, and has continued to object throughout these proceedings.2
Additionally, a review of the record indicates that there were
difficulties with the communication/hearing between the AJ, and
the witnesses and representatives, due to the use of the telephone.
See Hearing Transcript (HT) at 46; 49; 103; 127-8; 202; 251; 270; 302;
335; 414. Moreover, the record reflects that the outcome of the case
was affected, at least in part, by the AJ's credibility determinations.
Under the circumstances, the Commission is persuaded that the AJ abused
her discretion in conducting a telephonic hearing. Cf. Sotomayor
v. Department of the Army, EEOC Appeal No. 01A43440 (May 17, 2006).
In view of the foregoing, it is the decision of the Equal Employment
Opportunity Commission to VACATE the final agency action. The case is
REMANDED for an in-person hearing.
ORDER
Within fifteen (15) calendar days of the date on which this decision
becomes final, the agency shall submit to the Hearings Unit of the
EEOC San Antonio Field Office the request for a hearing, to be held in
person before a newly assigned AJ. 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
August 22, 2006
__________________
Date
1 In Louthen, the Commission has promulgated its policy
regarding the taking of telephonic testimony in the future
by setting forth explicit standards and obligations on its
Administrative Judges and the parties. Louthen requires
either a finding of exigent circumstances or a joint and
voluntary request by the parties with their informed consent.
When assessing prior instances of telephonic testimony, the
Commission will determine whether an abuse of discretion has
occurred by considering the totality of the circumstances.
In particular, the Commission will consider factors such as
whether there were exigent circumstances, whether a party
objected to the taking of telephonic testimony, whether
the credibility of any witness testifying telephonically
is at issue, and the importance of the testimony given
telephonically. Further, where telephonic testimony was
improperly taken, the Commission will scrutinize the evidence
of record to determine whether the error was harmless.
Sotomayor v. Department of the Army, EEOC Appeal No. 01A33440
(May 17, 2006).
2 The fact that a party has objected to telephonic testimony, while
instructive, is not dispositive of error. See Louthen, EEOC Appeal
No. 01A44521 (May 17, 2006).
??
??
??
??
2
01A40787
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036