01A41854
07-19-2006
Loretta Sanders,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A41854
Agency Nos. 01DCM07C01 & 01DCM07C02
Hearing No. 310-2002-05221X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 29, 2003 final order in the above-
entitled matter. Complainant claimed that the agency discriminated against
her based on her race/color (African-American/black), disabilities
(physical and mental), and reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964 and Section 501 of the
Rehabilitation Act of 1973, as applicable when (1) she received a lowered
performance appraisal rating (Excellent) because she reported a work
related injury during the rating period of July 7, 1999 through June 30,
2000, (2) she initially received a lower performance appraisal rating for
the rating period of July 1, 2000 through June 30, 2001, (3) management
allegedly violated her medical profile (duties outside her medical
limitations), and (4) she was not allowed to make food purchases in the
Commissary.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an EEOC Administrative Judge (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.
The Commission notes that one witness in this case testified over the
telephone without the objection of the parties. The Commission has,
however, recently 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 that specified conditions have been met. See Louthen
v. USPS, EEOC Appeal No. 01A44521 (May 17, 2006).[1] Because the facts of
this case pre-date Louthen, the Commission will assess the propriety of
conducting the hearing by telephone, by considering the totality of the
circumstances. The witness in question was called to testify by the
agency. The witness testified at the September 2003 hearing that he
retired around January 2002 from the Civil Service. An example of an
exigent circumstance is a witness who is not a federal employee or who left
federal service that cannot be compelled to appear in person and may
nonetheless be willing to testify telephonically. Louthen. Such is the
case here.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the AJ's ultimate finding, that unlawful employment discrimination was not
proven by a preponderance of the evidence, is supported by the record.[2]
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
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[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 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.
[2] For purposes of analysis only, we assume without finding that
complainant is an individual with a disability. See 29 C.F.R. �
1630.2(g)(1).