0120051744_r
12-04-2006
Ronald L. Porter, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Ronald L. Porter v. Department of the Navy
0120051744
December 4, 2006
.
Ronald L. Porter,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120051744<1>
Agency Nos. 00-60530-003, 01-60530-011
Hearing Nos. 340-2001-03059X, 340-2002-3505X
DECISION
Complainant filed an appeal with this Commission from the November 19,
2004 agency decision which implemented the October 7, 2004 decision of
an EEOC Administrative Judge (AJ) finding no discrimination. Complainant
alleged 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 Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
In his two consolidated complaints, complainant alleged that the agency
discriminated against him on the bases of age (D.O.B. April 24, 1954)
and/or in reprisal for prior EEO activity when: (1) complainant was given
a level 3 (fully successful) performance rating for the period ending
July 31, 1999; (2) complainant was separated by a reduction-in-force
(RIF) effective November 19, 1999; (3) complainant's reconsideration
request regarding his separation was denied on April 26, 2000; (4) in
October 2000, complainant discovered that he was not properly registered
in the Priority Placement Program (PPP) and/or the Re-employment Priority
List (RPL) maintained by the agency's Human Resources Service Center
(HRSC-SW); (5) from the date of complainant's separation by the RIF to
the present, complainant was not offered a position under PPP or RPL;
and (6) complainant was subjected to a hostile work environment when he
was subjected to the foregoing five claims.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an AJ. Following a
four-day hearing, the AJ issued a decision finding no discrimination.
BACKGROUND
Complainant worked for the agency at its Naval Air Warfare Center,
Weapons Division in the agency's China Lake facility in California.
From 1974 when he was hired to 1999, complainant held various positions.
In January 1993, he began working as a Computer Assistant, DG-4.
In August 1996, complainant was demoted to a DG-3 as a result of a
reduction-in-force (RIF) and transferred to the Weapons Software Branch
where he came under the supervision of Supervisor A. He was supervised
by Supervisor A until his separation in November 1999, when his position
was abolished during a RIF. After complainant's separation from the
agency, complainant filed for the PPP and also applied for the RPL but
was not re-employed by the agency. During his employment at the China
Lake facility, complainant engaged in EEO activities, beginning with
his failure to be promoted in 1989.
DECISION OF THE ADMINISTRATIVE JUDGE
A. Age Discrimination
The AJ found that complainant failed to establish a prima facie case of
age discrimination, stating that complainant failed to produce evidence,
either direct or indirect, that the agency treated him any differently
from similarly situated persons who were substantially younger than
complainant and, also, failed to produce any evidence raising an inference
of unlawful discrimination.
In so finding, the AJ noted that complainant's only evidence of age
discrimination was: (1) that a "young man" (Employee A) was moved around
the agency to protect him from the RIF; (2) that after the RIF, students
(and not complainant) were hired; and (3) that the performance evaluation
system negatively impacted older workers as evidenced by the testimony of
Person A. The AJ noted that complainant's witness, Person B, testified
that Employee A was not subject to the RIF because Employee A had a
friend (Person C), who was a powerful person in the chain of command,
with the AJ also noting that the evidence being proffered showed that
it was nepotism and not age which had to do with Employee A not being
subjected to the RIF.
Regarding students being hired for computer assistant positions, the AJ
found that the students were not similarly situated to complainant because
the students held temporary appointments. The AJ noted that the students
were participants in a student cooperative education program which hired
college students who were working toward their computer science degree
and who were hired temporarily as computer assistants to work during the
summers and were in a temporary status. The AJ also noted the testimony
of Person D, the head of the agency's professional recruitment office,
who stated that under the college recruitment program, trainees competed
only with other trainees for the temporary student appointments.
Regarding the performance evaluations, the AJ concluded that complainant
failed to meet his burden to show that age was the determinative factor
in the evaluation process. The AJ noted that it was undisputed that
under the DEMO project, an employee's performance was evaluated, taking
into account the employee's experience with the agency and the salary
which the employee received.
B. Disparate Impact Based on Age
The AJ noted that while not specifically pled, complainant raised
a disparate impact case of age discrimination. The AJ also noted
that under the disparate impact theory of discrimination, complainant
needed to demonstrate that any statistical disparity was the result of
a specific employment practice and, further, that the showing of a mere
statistical disparity was not enough. The AJ noted further that the
proper statistical comparison was between the age composition of the
at-issue rating scheme and the composition of the pool of employees
who were rated. The AJ concluded that complainant's statistics
were insufficient to establish a prima facie case of disparate impact
discrimination. The AJ found further that even if complainant established
a prima facie case of disparate impact discrimination, the agency had
shown that the DEMO project concerned a legitimate factor other than age
and that its implementation was justified by business necessity, i.e.,
it was in compliance with 5 U.S.C. Part 47 and approved by the Office
of Personnel Management as the agency's system for determining salaries
based on performance.
C. Reprisal
Regarding his performance rating, the AJ noted that complainant had
satisfied the first prong of a prima facie case of reprisal because he
had shown that he had filed prior complaints in 1990, 1991, 1992, 1994,
and 1995, and had represented an employee in the EEO process. The AJ
also noted that complainant satisfied the second and third prongs
of his prima facie case because he had shown that he had suffered
an adverse action as evidenced by the lowered evaluation and that
complainant's supervisor who rated complainant knew about complainant's
prior EEO activity. The AJ found that complainant failed to establish
the fourth prong of the prima facie case of reprisal. The AJ found
that although complainant had shown that the alleged reprisal occurred
close enough in time to the alleged discrimination because the alleged
discrimination occurred while complainant's EEO complaints remained
pending, complainant failed to show a sufficient causal connection
between his protected activity and the rating, i.e., that Supervisor
A was acting with retaliatory motivation when he rated complainant at
level three. The AJ stated that knowledge of EEO activity without more
could not sustain a finding of reprisal discrimination. The AJ noted that
complainant was in a new code and there was no evidence that Supervisor
A was implicated in any way in complainant's previous complaint nor any
evidence of a retaliatory animus on the part of Supervisor A. The AJ also
noted that Supervisor A recognized complainant's accomplishments and
further noted that if Supervisor A had harbored a retaliatory animus,
he would not have included the laudatory comments he had provided in
complainant's evaluation. The AJ concluded that other than perceptions,
complainant had not pointed to evidence of retaliatory motivation on
the part of Supervisor A and that mere perceptions of discrimination
did not constitute evidence of discrimination.
The AJ further concluded that even if complainant established a
prima facie case of reprisal regarding his performance evaluation,
the agency articulated a legitimate, nondiscriminatory reason for the
fully successful rating it provided complainant. The AJ noted that
because the amount of money for raises was limited, raises were based
upon performance evaluations and complainant did not receive the highest
rating. Raises were given to employees who added more value to the agency
to be given their fair share of a raise. The AJ stated that complainant
did not add as much value to his branch as other employees. The AJ also
noted that the agency generally had broad discretion to set policies
and carry out personnel decisions, and was not to be second-guessed by
the reviewing authority absent evidence of unlawful motivation. The AJ
concluded that complainant failed to proved by a preponderance of the
evidence that the agency's reasons for its actions were pretextual.
Regarding the allegation of a reprisal-based RIF, the AJ concluded that
complainant failed to establish the second prong of his prima facie case
of reprisal discrimination because Person E, the manager who decided
that the position held by complainant should be abolished, testified
that he was not aware of complainant's prior EEO activity when he made
the decision to abolish the position.
Regarding the agency's denial of complainant's request for reconsideration
regarding the RIF, the AJ concluded that complainant had not established
a causal connection between his protected activity and the denial of the
reconsideration request. The AJ noted that complainant had not presented
evidence that Person D had a retaliatory animus toward complainant and
that complainant's own witness (Person B) had denied ever hearing any
negative or retaliatory comments made by Person D about complainant while
Person D worked in the EEO unit or in the human resources departments.
The AJ also noted that Person D was empathetic to employees who had been
subjected to a RIF since he had been subjected to a RIF at three times
in his career.
The AJ concluded that even if complainant established a prima facie case
of reprisal, the agency articulated several legitimate nondiscriminatory
reasons for its decision to uphold the RIF as outlined in the 10-page
letter to complainant. The AJ also concluded that complainant failed
to show by a preponderance of the evidence that the agency's articulated
reasons were mere pretext for discrimination based on reprisal.
Regarding complainant's claim that the agency failed to register him
properly in the PPP and the RPL or offer him any positions, the AJ
determined that complainant failed to establish a prima facie case of
reprisal. The AJ noted that complainant was not able to show that the
lead Staffing Specialist at the Human Resources Service Center at China
Lake (which was involved in processing complainant's RIF and providing
complainant with advice and guidance on his registration in the RPL and
PPP) or that the Human Resources staff in San Diego (who was responsible
for servicing the PPP and RPL relating to China Lake effective October
23, 2000), had knowledge of complainant's prior EEO activity.
Concerning the agency's alleged failure to register complainant in
the PPP or the RPL, the AJ also concluded that the agency articulated
a legitimate, nondiscriminatory reason for its actions. The AJ noted
that because complainant mailed his RPL application to the wrong address,
although the address was indicated on the RPL application form at the top,
complainant was not registered on the RPL. The AJ also noted testimony
that after complainant's application was discovered, the agency was asked
to determine whether complainant would have missed consideration had he
been properly registered. In this regard, the AJ noted that the agency
requested a list of recruitment actions for the China Lake commuting area
for the series for which complainant would have been eligible, both for
open and closed recruitments for the period December 13, 1999, through
February 28, 2001, and complainant would not have been placed because
the positions were filled internally. The AJ also noted that the student
temporary employment program positions which were filled were positions
for temporary student aides. The AJ noted further that when complainant
registered for the PPP, he declined interest in part-time, intermittent,
temporary, term, seasonal, or accepted service appointments and therefore
was not considered for any computer assistant, computer technician
or laborer positions since being separated. The AJ further concluded
that complainant failed to establish by preponderant evidence that the
agency's articulated reasons were pretext for unlawful discrimination.
D. Hostile Work Environment
The AJ concluded that complainant failed to establish a prima facie case
of a hostile work environment based on his age or reprisal. The AJ
found that complainant had not provided any evidence of age related
remarks by persons involved in complainant's claims. The AJ noted that
while Person B testified that Person F had referred to complainant as a
mentally ill individual and was prone to filing frivolous EEO complaints
and that Person G had called complainant an "elf with an attitude"
and "our little sea lawyer," complainant had produced no evidence that
Persons F or G were involved in any of his five claims.
COMPLAINANT'S CONTENTIONS
On appeal, complainant asserts that the AJ erred as a matter of law
by failing to grant his motion for the AJ's recusal; by failing to
find reprisal, age discrimination and the existence of a hostile work
environment; by failing to address mixed motive; and by failing to
address and adopt the testimony of Person A. He also asserts that the
AJ's decision was not supported by substantial evidence, noting that the
agency failed to consistently apply and follow their own procedures as
to performance evaluations, RIF, PPP, and RPL rights.
ANALYSIS AND FINDINGS
As an initial matter, the Commission addresses complainant's argument
concerning the denial of complainant's motion to have the AJ recuse
herself.
Complainant argues on appeal that the AJ erred as a matter of law when
she denied complainant's recusal motion. He asserts that agency counsel
made representations about the issues in the complaint and that the AJ
failed to order agency counsel to cease his discussions because counsel
for complainant was not present. Complainant also asserts that after
the conclusion of the second day's hearing, complainant reported to
his counsel that while he was still in the hearing room putting files
together and after complainant's counsel had left, there were discussions
about age issues and other matters. Complainant asserts further that
the comments made to the AJ could not be forgotten and should have been
silenced by the AJ immediately as ex parte communication.
Regarding recusal, the record reflects that at the conclusion of the
second day of hearing, while complainant's counsel was outside of the
hearing room, there was conversation between the AJ and agency counsel.
Complainant filed a motion for recusal which the AJ denied in an order
prior to her reconvening of the third day of hearing. In her denial, the
AJ stated that she did not recall the nature of the comments and would not
have been influenced by them. Complainant was provided the opportunity to
put his motion for recusal on the record at the hearing. The AJ stated
at the hearing that all she remembered about the communication was that
she had asked if the parties could try to resolve the matter, that she
commented that Person A was a good witness, and that agency counsel
stated to her that he did not want to engage in a discussion outside of
the presence of counsel for complainant. The AJ's denial of the recusal
motion was proper. We do not find that the AJ's communication compromised
her objectivity or otherwise improperly influenced her conclusions.
See Higbee v. United States Postal Service, EEOC Appeal No. 01A12046
(July 10, 2002), req. to reconsider den., EEOC Request No. 05A21139
(November 4, 2002).
The Commission notes that 17 persons testified at the hearing. Four of
complainant's witnesses testified by telephone.<2> The record reflects
that at the hearing, complainant objected only to his witness, Person A,
testifying by telephone. Complainant does not raise any objections to
Person A's telephone testimony on appeal.<3> We note that it has long
been common practice for AJs to conduct pre-hearing matters by telephone
and to take testimony by telephone where a witness would otherwise be
unavailable to testify. Louthen v. United States Postal Serv., EEOC
Appeal No. 01A44521 (May 17, 2006) (citations omitted).<4> The instant
hearing was held prior to the Commission's decision in Louthen. The AJ
made no credibility determinations in her decision. The Commission,
applying the principles set forth in Louthen, finds that the AJ did
not abuse her discretion in allowing the telephone testimony of several
witnesses considering the totality of the circumstances.
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.
In order to establish a prima facie case of age discrimination,
complainant must show that complainant was over 40 years of age, that
complainant was subjected to an adverse employment action and that
complainant was treated less favorably than other similarly situated
employees younger than complainant.
Complainant can establish a prima facie case of reprisal by showing that:
(1) complainant engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, complainant was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
To establish a prima facie case of harassment, a complainant must show
that: (1) complainant belongs to a statutorily protected class; (2)
complainant 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;
and (5) some basis exists to impute liability to the employer, i.e.,
supervisory employees knew or should have known of the conduct but failed
to take corrective action.
In a complaint which alleges disparate treatment and there is an absence
of direct evidence of discrimination, the allocations of burdens and
the order of presentation of proof is a three-step process. A claim
of disparate treatment is examined under the three-part analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
For complainant to prevail, complainant must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
Id. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Next, the agency must articulate a legitimate, nondiscriminatory reason
for its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). If the agency is successful in meeting its
burden, complainant must prove, by a preponderance of the evidence,
that the legitimate reason proffered by the agency was a pretext for
discrimination. Id. at 256. However, the ultimate burden of persuading
the trier of fact that the agency intentionally discriminated against
complainant remains at all times with complainant. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000). Once complainant
offers evidence that the agency's reason is pretext, "'the factfinder must
then decide"' not ... whether that evidence is credible, but "'whether
the [agency] intentionally discriminated against complainant."' Saint
Mary's Honor Center v. Hicks, 509 U.S. 502, 520-519 (citing Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 714-715 (1983)).
Although the initial inquiry in a discrimination case usually focuses
on whether complainant has established a prima facie case, the prima
facie inquiry may be dispensed with when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. In such cases,
the inquiry shifts from whether complainant has established a prima
facie case and proceeds to the ultimate issue of whether complainant has
shown by a preponderance of the evidence that the agency's actions were
motivated by discrimination. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900159 (June 28, 1990).
Under the ADEA, it is "unlawful for an employer ... to fail or refuse to
hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age."
29 U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful age
discrimination, "liability depends on whether the protected trait (under
the ADEA, age) actually motivated the employer's decision." Reeves,
530 U.S. at 141 (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610
(1993)). "That is, [complainant's] age must have actually played a role in
the employer's decision making process and had a determinative influence
on the outcome." Id.
The Commission finds that the AJ's findings of fact are supported by
substantial evidence in the record. Assuming without deciding that
complainant has established a prima facie case of age and reprisal
discrimination, we find that complainant has not shown that the agency's
articulated reasons for its actions were mere pretext to mask unlawful
discrimination and that the employer was motivated by discriminatory
animus.
Regarding claim 1, complainant received a performance rating of
fully successful for the performance year ending in July 1999.
Complainant requested a reconsideration of the rating. Based on the
recommendation of the recommending official, the rating was changed
to highly successful after reconsideration. Although Supervisor A,
complainant's supervisor, rated complainant's performance as fully
successful, we find no discriminatory animus on the part of Supervisor
A in evaluating complainant as he had. The record shows that Supervisor
A included complimentary remarks about complainant's performance in the
evaluation and his testimony reflects that he rated complainant based on
his own evaluation of complainant's performance, on input received from
technical persons, who had worked with complainant on a daily basis,
and followed the guidance in the Performance System Handbook.
Regarding claims 2 and 3, complainant was separated pursuant to a RIF and
not for discriminatory reasons. The record establishes that complainant's
unit had undergone a substantial reduction in its workforce between 1992
and 1999. The record also shows that the agency conducted an independent
review of its RIF. The record also shows that the RIF was skills-based
and not age-based and was applied to positions rather than individuals
and motivated by goals of cost reduction and ensuring that the unit in
which complainant worked had the mix of skills and talents to serve.
The record also shows that 19 employees who were separated under the RIF
were under the age of 40. The record reflects that complainant's request
for reconsideration of the RIF action was denied by the agency after
a review of the technical execution of RIF processes was conducted to
determine whether the law, regulations, instruction and procedure were
properly applied so that complainant's retention rights were honored
and that his displacement rights were not violated.
Regarding claims 4 and 5, the record reveals that complainant was properly
registered in the PPP but not in the RPL because his application was
sent to the wrong address. The record also reveals that once the agency
discovered that complainant had sent his RPL application to the wrong
address, complainant was immediately registered on the RPL listing.
The record also establishes that even if complainant were properly
registered in the RPL, there were no positions to which complainant
would have been entitled because the only positions that came up for
complainant's level were filled internally and through the Student
Temporary Employment Program which were not subject to either RPL or PPP.
In addition, the record reveals that complainant was only interested in
full time permanent positions and at certain grade levels and therefore
would not have received consideration for the types of positions then
available.
We find that claim 6 of a hostile work environment fails because the
record, viewed as a whole, does not establish that complainant was
subjected to a discriminatory environment so pervasively and severely
hostile that it altered the conditions of complainant's employment.
As to each claim, complainant has not shown by a preponderance of
the evidence that the agency intended to discriminate against him.
The Commission also concludes that the AJ did not commit a legal error
by failing to analyze the claims for mixed motive. In such cases,
complainant first must prove that unlawful discrimination was a motivating
factor for the agency's decision. See EEOC Policy Guidance on Recent
Developments in Disparate Treatment Theory, No. 915.002, at 16 (July
7, 1992). The record, however, contains no evidence of a discriminatory
motive that warrants a mixed-motive analysis. Nor is there any evidence
that any agency action had a disparate impact based on age.
The agency's decision finding no discrimination is AFFIRMED.
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
December 4, 2006
__________________
Date
1Due to a new data system, the appeal has
been assigned the above-referenced appeal number.
2Two agency witnesses who were identified by the AJ as witnesses who
would provide telephone testimony ultimately did not testify.
3While there was an objection made at the hearing to Person A's testimony
being provided by telephone, the basis for the objection is not clear.
Regarding the taking of telephone testimony and addressing the objection,
the AJ stated that when credibility was not at issue, she allowed
telephone testimony. She further stated that she had not determined
that Person A's testimony would raise a credibility issue and therefore
Person A could testify by telephone.
4�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).