01A60380
08-23-2006
Fabian Thomas, Complainant, v. JoAnn Johnson, Chairman, National Credit Union Administration, Agency.
Fabian Thomas,
Complainant,
v.
JoAnn Johnson,
Chairman,
National Credit Union Administration,
Agency.
Appeal No. 01A60380
Hearing No. 360A50210X
Agency No. 0404
DECISION
JURISDICTION
On October 11, 2005, complainant filed an appeal from the agency's
September 8, 2005 final order concerning his 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. 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
At the time of events giving rise to this complaint, complainant worked
as a CU-9 Examiner, headquartered in Dallas, Texas. On July 19, 2004,
complainant contacted an EEO Counselor and filed a formal EEO complaint
on August 30, 2004 alleging that he was discriminated against on the
bases of race (African-American) and sex (male) when, on or about July
14, 2004, despite being qualified and having requested a career-ladder
promotion, the agency failed or refused to promote him to a CU-580-12,
principal examiner position in Group F, Region IV, National Credit Union
Administration in Austin, Texas.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his 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 8,
2005. Complainant, the representatives, the witnesses and the court
reporter were all located in Austin, Texas, while the AJ was in San
Antonio, Texas. The AJ issued a decision on August 25, 2005.
In his decision, the AJ dispensed with the normal prima facie case
inquiry, and proceeded to determine whether complainant established that
the agency's reasons were pretext for discrimination. The AJ found
that the agency articulated the following reasons for not promoting
complainant; (1) there was a letter from Las Colinas credit union
criticizing complainant's actions or recommendations; (2) there was
criticism of complainant's examination concerning the Lamar Credit Union
and the St. John Dallas Federal Credit Union; and (3) in September 2003,
a manager accompanied complainant to a meeting with the board of directors
of a certain credit union, and it was the manager's observation that
complainant was condescending and somewhat antagonistic to the board.
The AJ found that complainant did not establish pretext. The agency
subsequently issued a final order on September 8, 2005, adopting the
AJ's finding that complainant failed to prove that he was subjected to
discrimination as alleged.
On appeal, complainant contends that he should have been permitted to
review the complete personnel files of his managers. Additionally,
he asserts that his second-level supervisor has given different and
inconsistent reasons for failing to promote complainant. The agency
requests that the Commission affirm the final order.
Initially, we address the fact that the hearing was conducted
telephonically, without the objection of the parties.1 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 special conditions have been met. Louthen v. United States
Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006).2 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.
Moreover, the record reflects that the outcome of the case rested on the
AJ's credibility determinations, in particular, the credibility of the
management officials involved in the decision not to promote complainant.
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 23, 2006
__________________
Date
1 The mere lack of objection is not dispositive, however. See Louthen
v. United States Postal Service, 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.
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01A60380
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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