01a53466
08-03-2006
Valerie Sudduth, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.
Valerie Sudduth,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A53466
Agency No. ACF02100D
Hearing No. 310a40439x
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 12, 2005 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., and the Equal Pay Act of 1963,
as amended, 29 U.S.C. � 206(d) et seq.
At the time of events giving rise to this complaint, complainant worked as
a Personnel Specialist in the agency's Region 6 facility in Dallas, Texas.
In January 1999, a decision was made at the agency-wide level to contract
out some of the functions of Personnel Specialist positions pursuant to
Office of Management and Budget (OMB) Circular A-76. Other functions were
subsequently transferred as well, and complainant and her counterparts
in other regions became concerned that they would lose their jobs.
On February 4, 2000, complainant filed an EEO complaint with regard to
the agency's implementation of the A-76 process alleging that the agency
discriminated against her on the bases of race (African-American), sex
(female), and reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 when:
1. the agency contracted out portions of her work;
2. the agency violated reduction in force and transfer of function
regulations;
3. the agency violated merit systems principles and committed prohibited
personnel practices;
4. the agency violated the Equal Pay Act by paying complainant less than
similarly situated males;
5. she was constructively removed from her position by being excluded
from participation in the reorganization of the agency after participating
in a related class action;
6. management created a hostile and intimidating work environment; and
7. acts of reprisal were taken against her.
The agency originally dismissed complainant's individual complaint for
failure to state a claim. Complainant appealed to the Commission, and
we reversed in Sudduth v. Department of Health and Human Services, EEOC
Appeal No. 01A20979 (March 24, 2003). The agency sought clarification
of the issues, which complainant provided, and on December 3, 2003, the
agency issued the acceptance letter outlining the issues as stated above.
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 AJ. Complainant timely requested a hearing, which
was held on January 18, 2005. The AJ issued a decision on February 10,
2005, finding no discrimination.
On April 12, 2005, the agency issued its final order, adopting the
AJ's finding that complainant failed to prove that she was subjected to
discrimination as claimed. The instant appeal followed.
As an initial matter, the Commission notes that two witnesses testified
by telephone at the hearing held by the AJ. 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
that specified conditions have been met. See Louthen v. United States
Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006).1 However,
because the facts of this case pre-date Louthen, the Commission will
assess the propriety of taking the testimony of some witnesses by
telephone, considering the totality of circumstances. Here, it is
unclear whether exigent circumstances existed. However, it is clear
that there were no issues of witness credibility that might have been
impacted by the taking of testimony by telephone, and neither party
objected to the manner in which these witnesses testified. Under these
circumstances, even if it is assumed that the AJ abused his discretion
by taking testimony by telephone, the Commission finds that his action
would have 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 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 Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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
August 3, 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 witnesses testifying telephonically is at issue,
and the importance of the testimony given telephonically. Further,
where telephonic testimony is improperly taken, the Commission will
scrutinize the evidence of record to determine whether the error was
harmless, as is found in this case.
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01A53466
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A53466