0120081139
06-05-2008
James A. Washington, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
James A. Washington,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120081139
Hearing No. 570-2006-00299X
Agency No. ARWRAMC05JAN06379
DECISION
Complainant filed an appeal from the agency's November 16, 2007, final
order concerning his equal employment opportunity (EEO) complaint claiming
unlawful 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a).
During the period at issue, complainant worked as Custodial Worker on
the Waste Management Team, Environmental Services Branch at Walter Reed
Medical Center in Washington, DC.
On February 18, 2005, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of disability (depression and
hepatitis C)1 and in reprisal for prior protected EEO activity.
By letter dated August 25, 2005, the agency accepted complainant's formal
complaint for investigation. 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
hearing in January 2007. In a Memorandum of Pre-Hearing Conference and
Order dated January 10, 2007, the AJ set forth that the instant matter
involved the following claims:
1. On November 18, 2004, [complainant] received notice to extend the
leave restriction from the original restriction dated May 27, 2004;
2. In March 2005, his supervisor told him to work in inclement weather
while on light duty restriction;
3. On March 7, 2005, his supervisor charged him with AWOL [Absent Without
Leave] and allegedly threatened to hamper his union participation;
4. In April 8, 2005, he received a proposed suspension from
his supervisor;
5. On May 31, 2005, his supervisor charged him with AWOL;
6. On August 8, 2005, he received a letter of warning;
7. On August 29, 2005, he was charged with AWOL for one hour.
On October 4, 2007, the AJ issued a decision finding no
discrimination. Regarding complainant's claim of disability
discrimination, the AJ stated that complainant alleged two disabilities:
Hepatitis C and depression. The AJ found that complainant failed to
show that his Hepatitis C significantly affected a major life activity.
Regarding complainant's depression, the AJ assumed this condition
constituted a disability. Specifically, the AJ stated that "[t]he June
2006 doctor's report establishes that it significantly affected the
major life activity of working. The agency argued, and it is correct,
that this report was not done until a year after the events at issue in
this complaint. Therefore, it is unknown whether the depression had the
same affect on his major life activity in 2005 as it did in 2006 when
the report was written. However, for purposes of further analysis it
will be assumed that it did." The AJ also noted that complainant did
not argue that his knee injury constituted a disability.
Regarding claim (1), the extension of leave restriction, the AJ found
that the agency articulated a legitimate, nondiscriminatory reason for
its action. Specifically, complainant's supervisor (S1) testified that
complainant had over 275 hours of absence from work since May 24, 2004,
the date of complainant's original Notice of Leave Restriction. The AJ
noted that "much of this leave was unscheduled and complainant did not
give the required 24 hour notice prior to routine medical appointments.
He renewed the leave restriction letter because complainant continued to
have many absences and did not comply with leave requesting procedures."
In response to complainant's argument that leave was ultimately approved
for his absences, the AJ noted that complainant's argument fails to
show that extension of leave restriction was discriminatory because the
extension was due to the large amount of leave used by complainant and
the fact that he did not comply with leave procedures. The AJ found
that complainant failed to show that the agency's articulated reason
was pretext for discrimination.
Regarding claim (2), that complainant was told to work in inclement
weather, the AJ found that the agency articulated a legitimate,
nondiscriminatory reason for its action. Specifically, the AJ found
that complainant was assigned to work as a door opener on the loading
dock by S1 because he had a knee injury and had temporary restrictions.
The AJ stated that complainant had no documentation that he could not
work in cold weather. The AJ found that complainant failed to show that
the agency's articulated reason was pretext for discrimination.
Regarding claim (3), that complainant was charged with AWOL and S1 made
a comment about complainant's union work, the AJ found that the agency
articulated a legitimate, nondiscriminatory, reason for its action.
The AJ stated that "[S1] testified credibly that he saw complainant leave
at 11 a.m. and saw him return at 2 p.m. He said that complainant wears
'white bunny suits' while working and complainant had taken it off when
he went to lunch and when he saw him return he did not have it on.
Thus, complainant did not rebut S1's explanation that he was charged
AWOL because he was gone for an extra 1.5 hours of lunch and he did not
credibly deny that he was in fact gone that period of time."
Regarding complainant's claim that S1 made a comment about his union
work, the AJ stated that S1 testified that he might have asked another
union official about what requirements the union had with regard to
attendance to be a union representative. The AJ further stated that
S1 did not take any action to have complainant not approved as a union
representative and it fact would not have authority to do so. The AJ
further noted that whether "[S1's] actions might have infringed upon
complainant's union rights or violated the union agreement is not a
matter over which the Commission has jurisdiction unless it was done
for discriminatory purposes."
Regarding claim (4), the proposed suspension, the AJ found that the
agency articulated a legitimate, nondiscriminatory reason for its
action. Specifically, the AJ found that S1 issued complainant the
proposed suspension because complainant was still not following the
leave restriction letter. S1 ultimately did not issue the suspension
after speaking with personnel and they advised him that he needed more
documentation to support a suspension. The AJ further noted that a
proposed action alone does not render an employee aggrieved; however,
"[i]f a proposed action is purportedly combined with other acts of
harassment to form an alleged pattern of harassment, it may state a
claim. However, in the instant case, all of the other alleged claims of
harassment have been found not to be discriminatory as discussed in this
decision. Therefore, the proposed suspension...does not state a claim."
Regarding claim (5), on May 31, 2005, complainant was charged with AWOL,
the AJ found that the agency articulated a legitimate, nondiscriminatory
reason for its action. The AJ stated that complainant came back to
work in May 2005, and was told that there was no light duty available so
management sent him home. Over the next few days, complainant did not
call in to request leave or to see if there was any light duty available
and S1 charged him AWOL because he failed to call in or report to work
as required by his Notice of Leave restriction. The AJ found that
complainant failed to establish that the agency's articulated reason
was pretext for discrimination.
Regarding claim (6), that complainant was issued a Letter of
Warning on August 8, 2005, the AJ found that the agency articulated a
nondiscriminatory reason for its action. Specifically, the AJ stated that
S1 issued complainant the Letter of Warning because on July 25, 2005,
complainant was late and S1 gave him a verbal warning about tardiness.
Several days later, complainant was late again, so S1 issued a written
warning. The AJ found that complainant failed to establish that the
agency's articulated reason was pretext for discrimination.
Regarding claim (7), that complainant was charged with one hour of
AWOL on August 29, 2005, the AJ stated that S1 testified credibly that
another agency official (A1) told S1 to charge complainant AWOL for an
hour AWOL because he observed complainant talking in the hall for one
hour with the Union Vice President. The AJ further noted that "[i]t
was clearly erroneous for [A1] to tell [S1] to charge complainant one
hour of AWOL as the uncontested testimony of complainant and the [Union
Vice President] was that they only spoke for five minutes. However,
this mistake...is not discriminatory because [A1] did not know of
complainant's EEO activity and did not know that he had a disability or
what his medical impairments were...Thus, whatever may have motivated
[A1] it could not have been discriminatory animus because of either
complainant's protected EEO activity or disability."
The AJ addressed one final matter. The AJ stated that "[w]hile the
investigator was interviewing employees, [S1] told them not to speak with
the investigator unless they were given authorization by a supervisor
or manager. He said he did so because he did not know if the investigator
was legitimate or might have just been someone from the outside coming in.
Complainant alleged this was retaliatory. Complainant has not established
that [S1] had retaliatory animus by this contention. It is undisputed
that the employees were in fact allowed to speak with the investigator, an
investigation took place and thus there was no harm done and [S1] did not
interfere with the investigation. Complainant also does not...establish
that any employee was intimidated by this process or otherwise impeded
from freely giving testimony. Thus, these instructions from [S1]
had no impact on this case. Nevertheless, [S1's] statements to the
employees potentially could have a chilling effect. The fact that they
did not in the instant case done not mean that they were appropriate.
[S1], and other agency managers, should not tell employees not to speak
with an investigator without permission from a manager."
The agency's final order dated November 16, 2007, implemented the AJ's
decision finding no discrimination.
On appeal, complainant asserts that the AJ's decision finding no
discrimination is improper. Complainant reiterates many arguments made
during the hearings process. In addition, complainant asserts that
the agency ordered him to undergo an examination and if he refused to
take the examination, he would be terminated. Furthermore, complainant
asserts that S1 told other employees not to speak with the investigator
in order to create a climate of fear.2
In response, the agency asserts that complainant's appeal is untimely
filed. Specifically, the agency states that "according to the tracking
documents, the letter first arrived at [complainant's] residence on
[November 20, 2007], however, he waited until [December 5, 2007], or 15
days to collect it from the post office...[A] postal form is left at the
residence to inform the recipient that he has a delivery waiting for
him,...and by whom it was sent. [Complainant] knowingly ignored the
certified mail notification for 15 days, knowing who sent it to him and
certainly, at least suspecting what it was." The agency further asserts
that assuming arguendo that the appeal is deemed timely, the Commission
should affirm the agency's final order implementing the AJ's decision.
As a threshold matter, we determine that complainant's appeal to be timely
filed. The record contains a copy of a certified return receipt card
indicating that complainant received the agency's final order on December
5, 2007. Complainant timely filed an appeal with the Commission on
January 4, 2008.3 We are unpersuaded by the agency's assertion that the
time frame should begin to run when complainant was left a notice at his
residence indicating that he had a certified letter at the post office.
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.
We note that, at the hearing, one witness's testimony was taken via
telephone. We have 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);
Sotomayor v. Department of the Army, EEOC Appeal No. 01A43440 (May 17,
2006); Rand v. Department of Treasury, EEOC Appeal No. 01A52116 (May 17,
2006).4 In the instant matter, it does not appear from the record that
exigent circumstances existed.5 The record reflects that both parties
agreed to take the witness's testimony by telephone. Hearing Transcript
(HT) at 2. However, the record is devoid of evidence that the parties
gave their informed consent.6 Nevertheless, we find that the AJ taking
this witnesses' testimony by phone constitutes harmless error. The AJ in
the instant matter found complainant's testimony, which was corroborated
by the witness in question, to be credible with respect to claim (7),
being charged an hour of AWOL. The AJ, however, found that complainant
failed to establish discrimination with respect to this claim for other
reasons set forth in her decision.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming arguendo that complainant established a prima facie case of
discrimination and/or retaliation, we find that the agency articulated
legitimate, nondiscriminatory reasons for its actions, as set forth above.
Upon review of the record, we find that complainant did not establish,
by a preponderance of the evidence, that the agency's articulated reasons
were pretext for discrimination and/or retaliation. We further note that
an AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In the instant matter, we find no reason to disturb the AJ's credibility
determinations.
To establish a claim of harassment based on race, sex, disability, age,
or reprisal, complainant must show that: (1) he is a member of the
statutorily protected class; (2) he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. The
harasser's conduct should be evaluated from the objective viewpoint of a
reasonable person in the victim's circumstances. Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
We further find that complainant failed to establish that he was subjected
to unlawful harassment. Complainant, as set forth above, did not
establish that the alleged incidents were based on his protected classes.
With respect to the assertion that S1 told other employees not to speak
to the EEO Investigator without obtaining permission first from a manager
or supervisor, we find that although this matter was briefly raised at
the hearing and briefly referenced in the AJ's decision, this matter
was not an accepted claim for this formal complaint. Thus, we will not
address this matter herein as a separate claim. If complainant wishes to
pursue this matter, he should contact an EEO Counselor. Upon review of
the record, we find that for the reasons set forth in the AJ's decision,
this incident did not have an impact upon the finding of no discrimination
regarding the accepted claims. In addition, the record reflects that
the AJ approved several of complainant's witnesses to testify at the
hearing pursuant to the AJ's Memorandum of Pre-hearing Conference and
Order dated January 10, 2007. The record reflects that these individuals
did provide testimony at the hearing conducted by the EEOC AJ.
Regarding complainant's assertion that the agency made him undergo a
fitness for duty examination, we find that this matter was also not
an accepted claim in the instant matter; thus, we decline to address
it herein. If complainant wishes to pursue this matter, he should
contact an EEO Counselor.
Finally, complainant alleges that the agency did not provide him with
official time to attend the hearing. 29 C.F.R. 1614.605(d) provides,
in pertinent part, that "[t]he complainant..., if employed by the agency
and otherwise in a pay status, shall be on official time, regardless of
their tour of duty, when their presence is authorized by the agency or the
Commission during the investigation, informal adjustment, or hearing on
the complaint." The Commission has stated that an allegation pertaining
to the denial of official time states a separately processable claim
alleging a violation of the Commission's regulations, without requiring
a determination of whether the action was motivated by discrimination.
See Edwards v. United States Postal Service, EEOC Appeal No. 05960179
(December 23, 1996). Essentially, the Commission has held that it has
the authority to remedy a violation of 29 C.F.R. 1614.605 without a
finding of discrimination. Id. The Commission held that such a claim
should not be processed in accordance with 29 C.F.R. 1614.108, since the
focus is not on the motivation, but rather the justification of why the
complainant was denied a reasonable amount of official time. Id.
We are unable to determine from the record whether complainant was
denied official time to attend the hearing. Thus, we order the agency
to conduct a supplemental investigation with respect to this matter.
Accordingly, we AFFIRM the agency's final order implementing the AJ's
finding of no discrimination. However, we REMAND to the agency for
further processing complainant's claim that he was not provided with
official time to participate in the hearing in accordance with the ORDER
below.
ORDER
The agency is ordered to investigate the issue of whether complainant was
denied official time to attend the hearing. In the investigative record,
the agency shall include documentation indicating whether complainant was
granted official time to attend the hearing. If complainant was denied
official time, the agency shall provide justification for the denial.
The agency must also provide complainant an opportunity to place into the
record any evidence supporting his claim that he was denied official time.
Within sixty (60) days from the date this decision becomes final, the
agency shall issue a decision as to whether or not complainant was
properly denied official time. The agency's decision shall provide
appeal rights to the Commission.
A copy of the agency's decision with notice of rights must be sent to
the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z0408)
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
June 5, 2008
__________________
Date
1 For purposes of analysis only, we assume without finding, that
complainant is an individual with a disability.
2 On appeal, complainant asserts that S1 made this statement to
other employees the day before the hearing. We assume, however,
that complainant means the day before the fact-finding conference
which was part of the investigation; rather than the day before the
hearing conducted by the EEOC AJ. Complainant asserted in a January 18,
2006 memorandum that this incident occurred on January 4, 2006, and the
fact-finding conference occurred on January 5, 2006. The hearing before
the EEOC AJ did not occur until January 2007.
3 The record reflects that complainant's appeal contains a date stamp
reflecting it was received at the Commission's Washington Field Office
(WFO) on January 4, 2008 and a date stamp reflecting that it was received
in the Commission's Office of Federal Operations (OFO) on January 7, 2008.
During this time period, WFO and OFO were located at the same address.
Based on these circumstances, we find that complainant's appeal was
filed on January 4, 2008.
4 In Louthen, the Commission promulgated its policy regarding the
taking of telephonic testimony in the future by setting forth explicit
standards and obligations on the 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 such factors 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. Sotomayor v. Department of the Army, EEOC Appeal No. 01A43440
(May 17, 2006).
5 According to the hearing transcript, the witness in question was unable
to testify in person because he was home sick on the day of the hearing.
HT at 2.
6In Louthen, the Commission stated that informed consent at a minimum
requires either a statement signed by each party, or other such
documentation in the record which sets forth their understanding of
the limitation of telephonic testimony: 1) the AJ would not have the
opportunity to observe the witnesses' testimony in person; 2) credibility
determinations based on the AJ's observations of the demeanor of a
witness may not be possible; 3) credibility determinations based on an
AJ's in-person observation of a witness are entitled to greater deference
by the Commission on appeal; and 4) technological problems may arise
that could interfere with the hearing, for example, by causing delay or
difficulties with transmission, that would have to be corrected in some
other manner by the AJ.
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0120081139
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120081139