01a42919_r
08-28-2006
Howard K. Katz, Complainant, v. Lurita Alexis Doan, Administrator, General Services Administration, Agency.
Howard K. Katz v. General Services Administration
01A42919
August 28, 2006
.
Howard K. Katz,
Complainant,
v.
Lurita Alexis Doan,
Administrator,
General Services Administration,
Agency.
Appeal No. 01A42919
Agency No. GSA-RO2-2002-0024
Hearing No. 160-2003-08359X
DECISION
Complainant initiated an appeal from the agency's final order, dated
February 24, 2004, concerning his equal employment opportunity (EEO)
complaint of unlawful employment discrimination in violation of the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS
the agency's final order.
The record reveals that complainant, at the relevant time, was employed
as a Realty Specialist at the agency's Public Building Service, New York,
New York facility. Complainant filed a formal EEO complaint on October 2,
2002, alleging that the agency discriminated against him on the basis
of age (D.O.B. 10/9/29) when:
On August 21, 2002, complainant was terminated from his position during
his probationary period.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision, dated January
12, 2004, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of age discrimination. Specifically, the AJ found that complainant failed
to demonstrate that similarly situated employees not in complainant's
protected classes were treated differently under similar circumstances
when complainant was separated from his position for poor performance
prior to completion of his one-year probationary period. The agency's
final order implemented the AJ's decision.
The Commission notes that the hearing in this case was held by
telephone, 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 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. Under these circumstances, even if
it is assumed that the AJ abused his discretion in this case by taking
testimony telephonically, the Commission finds that his 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 careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We find the record replete with evidence that complainant received
adequate formal training as well as on-the- job and field training,
despite which complainant's performance remained unacceptable and that
he was so informed by his supervisor on repeated occasions. The record
indicates that complainant could not complete the most basic duties
of his position without constant guidance or supervision. We note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's age.
We discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal and the agency's response, we AFFIRM the agency's
final order finding no discrimination.
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 28, 2006
__________________
Date
1The mere lack of an objection is not dispositive, however. 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).