01a45437_r
07-19-2006
Ernest H. Garcia, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ernest H. Garcia,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45437
Agency No. 1G-787-0004-03
Hearing No. 360-2003-08396X
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. In his complaint, dated December
23, 2002, complainant alleged discrimination based on race (Hispanic)
and sex (male) when on September 20, 2002, he was removed from the
Postal Service. At the conclusion of the investigation of the complaint,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
On June 30, 2004, the AJ issued a decision finding that complainant had
not been discriminated against. Specifically, the AJ found that the
agency presented a legitimate, nondiscriminatory reason for its action,
which complainant failed to rebut. On July 7, 2004, the agency issued a
decision fully implementing the AJ's decision. Thereafter, complainant
filed the instant appeal.
The Commission notes that the entire hearing in this case was apparently
held by telephone. On appeal, complainant objects to the hearing being
held by telephone.<1> Complainant argues on appeal that the AJ was
unable to assess the credibility of the witnesses on the telephone and
that although she stated that she would attend the hearing in person, she
ultimately decided to hold the hearing by telephone. Complainant further
argues that, �Complainant/Appellant timely objected to conducting this
hearing by telephone [and that the AJ] erred in overruling complainant's
objections without any reason or rationale for conducting the hearing
by telephone rather than in person.� The record contains no indication
that complainant or his attorney ever objected to a hearing being held by
telephone until the instant appeal was filed. A review of the hearing
transcript reveals no such objection. Complainant has not indicated
any date or specific instance where such an objection was raised.
Although complainant argues on appeal that the �AJ had significant
difficulties following the evidence,� we find that complainant only
pointed to one instance where the AJ had trouble hearing the testimony.
The hearing transcript shows that the AJ asked the witness to repeat the
testimony in this cited instance and the record indicates, by the AJ's
response in repeating the witness' answer, that the AJ was ultimately
able to hear the witness without any problem. Furthermore, a review
of the record shows that the AJ was able to hear the remainder of the
testimony at the hearing without difficulty.
The Commission has held that testimony may not be taken by telephone in
the absence of exigent circumstances, unless at the joint request of the
parties and provided specified conditions have been met. See Louthen
v. United States Postal Service, EEOC Appeal No. 01A44521 (May 17,
2006).<2> However, since the facts of this case pre-date Louthen,
we will assess the propriety of conducting the hearing telephonically
by considering the totality of the circumstances. Here, it is unclear
whether exigent circumstances existed. On the other hand, it is clear
that there were no issues of witness credibility that might have been
impacted by the taking of testimony telephonically. As discussed herein,
the termination of complainant is supported by documentary evidence and
does not rely on the credibility of any witnesses. This is in contrast to
Louthen where the Commission noted that the credibility of witnesses was
in question including allegations that complainant was characterized by
agency officials as �constantly filing EEO complaints� and was referred to
as an �EEO Queen� by an agency official speaking to a selecting official.
No such credibility issues are present in the instant matter. Under these
circumstances, even if it is assumed that the AJ abused her discretion
in this case by taking testimony telephonically, the Commission finds
that her action constituted harmless error.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a review of the record, the Commission finds that the agency
articulated a legitimate, nondiscriminatory reason for complainant's
removal. Complainant's supervisor stated that complainant was removed
due to his irregular attendance. Specifically, the supervisor cited in
the removal notice at issue complainant's 69.75 hours of unscheduled sick
leave/emergency annual leave from February to August 2002. Therein,
he also cited complainant's prior disciplinary actions due to his
unsatisfactory attendance on four different occasions, i.e., Letter
of Warning on January 9, 2001, 7-Day Suspension on April 12, 2001,
14-Day Suspension on September 26, 2001, and 30-Day Paper Suspension
on February 7, 2002. The record indicates that the February 7, 2002
30-Day Paper Suspension was a negotiated reduced disciplinary action
from what was originally a Notice of Removal issued to complainant on
January 15, 2002. In that negotiated agreement, complainant agreed to
be �regular in attendance.�
Upon review, the Commission finds that complainant failed to rebut the
agency's legitimate, nondiscriminatory reason for the removal action.
Furthermore, complainant failed to show that the agency's action was
motivated by discrimination. Moreover, complainant failed to show, by
a preponderance of the evidence, that he was discriminated against on
the bases of race or sex. The AJ's decision finding no discrimination
is supported by substantial evidence of record.
The agency's decision finding no discrimination is AFFIRMED.
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 (S0900)
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. If you
file a request to reconsider and also file a civil action, 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
July 19, 2006
__________________
Date
1The fact that a party has objected to
telephonic testimony, while instructive, is not dispositive of error.
See Louthen v. United States Postal Serv., EEOC Appeal No. 01A44521
(May 17, 2006).
2�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
witnesses 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, as is found in this
case.� Sotomayor v. Department of the Army, EEOC Appeal No. 01A43440
(May 17, 2006).