Ajay Jani, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMay 9, 2007
0120045758 (E.E.O.C. May. 9, 2007)

0120045758

05-09-2007

Ajay Jani, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.


Ajay Jani,

Complainant,

v.

Dr. Francis J. Harvey,

Secretary,

Department of the Army,

Agency.

Appeal No. 01200457581

Hearing No. 360-2004-00119X

Agency No. ARBLISS03SEP023

DECISION

On August 26, 2004, complainant filed an appeal from the agency's July

23, 2004 final action concerning his equal employment opportunity (EEO)

complaint alleging employment discrimination in violation of 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). For the following reasons, the

Commission VACATES the agency's final action.

The record indicates that complainant filed a formal EEO complaint

on November 6, 2003, alleging that he was discriminated against on

the basis of disability (stuttering) when he was not selected for an

Internal Medicine residency position at the agency's William Beaumont

Medical Center in El Paso, Texas ("facility").

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 telephonic hearing on June 8,

2004 and issued a decision on June 9, 2004. The agency subsequently

issued a final order adopting the AJ's finding that complainant failed

to prove that he was subjected to discrimination as alleged.

Complainant alleged that the agency did not select him for a civilian

position in the facility's internal medicine residency program due to

his stutter. The evidence establishes that on May 23, 2003, complainant

spoke over the telephone to the facility's Associate Program Director

for the Internal Medicine residency program, but became aware on or

about June 3, 2003 that another applicant for the residency program had

been selected. Complainant alleged that the only reason the agency lost

interest in him for a position in the residency program was his stutter.

The AJ in the instant case initially found that complainant established

a prima facie case of discrimination, as the agency regarded him as

being disabled. AJ's Decision at 11. However, the AJ found that the

evidence established that complainant's stutter did not rise to the

level of a disabling condition as defined by the Rehabilitation Act.

In so finding, the AJ found that complainant did not present evidence at

the hearing to persuade her that his stuttering substantially limited any

major life activities. The AJ then found that the agency articulated

legitimate, nondiscriminatory reasons for its actions. Namely, the

facility's Program Director and Associate Program Director stated that

complainant was not selected for the residency as other applicants had

stronger applications than he did. In so finding, the AJ noted that

the fact complainant graduated from medical school in 1991 was an issue

with the facility, as well as the fact that complainant's "externships"

were not hands-on medical training and as the letters of recommendation

complainant received were lukewarm. AJ's Decision at 16. However,

the evidence establishes that the other applicants had recent medical

school graduation dates, "glowing" letters of recommendation and had

advanced degrees or had done research. The AJ then found that the

agency's articulated reasons for its actions were believable. The AJ

stated that it was both believable and legitimate that the facility's

residency slots would be offered to applicants who provided the greatest

opportunity for becoming licensed, practicing physicians.

The AJ further found that complainant failed to demonstrate that the

agency's articulated reasons for its actions were more likely than not a

pretext for disability discrimination. In so finding, the AJ initially

noted that while the selectee had very similar qualifications to those

of complainant, she would not second-guess the selecting official.

Further, the AJ found that complainant was not a significantly more

qualified candidate than the selectee. The AJ noted that in looking at

the applications of the four (4) applicants who were given an interview

for the residency, it was reasonable that the Program Director would

consider the totality of the applications qualifications. The AJ found

that the Assistant Program Director erred in speaking to complainant over

the telephone prior to scheduling the formal interviews for the residency

position, which led to the possibility that there was discriminatory

motive involved in not selecting complainant. However, the AJ noted that

she considered all the evidence and was persuaded that what the Assistant

Program Director stated at the hearing was a "true and believable"

version of what happened in the instant case. AJ's Decision at 28.

The AJ found that it was believable that the facility's Program Director

and Assistant Program Director were focused on producing a physician

who would become licensed in all states, and there was some concern,

based on complainant's application, whether he would become licensed

at the end of his residency. After considering all the evidence,

the AJ found that she was not convinced that the officials responsible

for selecting the residents were motivated by discriminatory intent.

The agency's final action implemented the AJ's decision finding that

complainant was not discriminated against.

On appeal, complainant alleged that the AJ based her decision on

subjective information. Specifically, complainant stated that the AJ

could not have determined that all the applicants for the residency at

issue were from "good" medical schools. Further, complainant alleged

that his conversation with the Assistant Program Director did not concern

his ability to become licensed as a physician in every state, but the AJ

found that complainant's ability to become licensed was a reason that

he was not chosen for the residency. In addition, complainant noted

that the Program Director and the Assistant Program Director stated

that they discussed his stutter during the telephone conversation,

but attributed it to nerves during the conversation. The agency did

not respond to complainant's appeal.

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. 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).

Initially, we note that a preliminary issue before the Commission in

this appeal is whether the Administrative Judge properly conducted the

hearing in this case by telephone. The Commission recently addressed

this matter in the case of Louthen v. United States Postal Service,

EEOC Appeal No. 01A44521 (May 17, 2006)2. After reviewing at length the

history and development of the administrative hearing, the Commission,

among other things, concluded that:

...considering the special weight given to an AJ's demeanor-based

credibility determinations, however, the Commission is persuaded

that the AJ should be afforded the maximum opportunity to observe

the demeanor of a witness. To that end, the Commission finds

that, with the limited exceptions set forth below, the conduct

of an entire hearing by telephone is not appropriate and should

not occur.

The Commission recognizes that because of exigent circumstances it

may be necessary to take the testimony of a witness, or to conduct an

entire hearing, telephonically. For instance, the parties or witnesses

to an action may be at far-flung locations and travel is impractical for

reasons other than mere inconvenience or expense to the parties, e.g.,

a civilian witness has been deployed on military reserve duty. Witnesses

who are not Federal employees or who have left Federal service and cannot

be compelled to appear in person may nonetheless be willing to testify

telephonically. Taking testimony by telephone may be an appropriate

reasonable accommodation where a witness or party has a disability that

prevents him or her from participating in a hearing in person. This is

not an exhaustive list of the limited circumstances in which a telephonic

hearing or telephonic testimony may be warranted.

A telephonic hearing or testimony is permissible when the AJ determines

that such exigent circumstances require it and the AJ documents these

circumstances in the record. If exigent circumstances are not present,

a telephonic hearing (or telephonic testimony) may be conducted only if

the parties submit a joint request to the AJ. In such a case, prior to

the date of the hearing, the AJ must obtain a statement of consent from

both parties to the telephonic hearing or testimony, reflecting that

the parties have been informed of the limitations of taking testimony

telephonically. Further, the AJ must be satisfied that it is unlikely

that the credibility of any witness testifying telephonically will be

at issue. The parties' joint request as well as the AJ's ruling on them

must be documented in the record. Louthen, supra.

Here, the record contains no evidence of the type of exigent circumstances

that Louthen requires. The agency's witnesses were all present in one

location (El Paso, Texas), while complainant and his wife participated in

the hearing from Pennsylvania. However, there is no evidence to suggest

that the AJ was unable to travel to El Paso in order to preside over

the hearing and personally assess the credibility of the witnesses.3

Moreover, the record reflects that the outcome of the case, at least

in part, was impacted by the AJ's credibility determinations regarding

the testimony of the Program Director and the Assistant Program Director

concerning the reasons that complainant was not interviewed or chosen for

the Internal Medicine residency program. The AJ also made credibility

determinations concerning the Assistant Program Director's statements

regarding her telephone conversation with complainant in May of 2003.

Under the circumstances, the Commission is persuaded that the AJ

abused her discretion in conducting a telephonic hearing. Cf. Sotomayor

v. Department of the Army, EEOC Appeal No. 01A43440 (May 17, 2006).

In view of the foregoing, it is the decision of the Equal Employment

Opportunity Commission to VACATE the final action. The case is REMANDED

for an in-person hearing.

ORDER

Within fifteen (15) calendar days of the date on which this decision

becomes final, the agency shall submit to the Hearings Unit of the EEOC

San Antonio District Office the request for a hearing, to be held in

person before a newly assigned AJ. The agency is directed to submit a

copy of the complaint file to the EEOC Hearings Unit within fifteen (15)

calendar days of the date this decision becomes final. The agency shall

provide written notification to the Compliance Officer at the address set

forth below that the complaint file has been transmitted to the Hearings

Unit. Thereafter, the Administrative Judge shall issue a decision on the

complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall

issue a final action in accordance with 29 C.F.R. � 1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 (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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. 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 filed your appeal with the

Commission. 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. 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

_____5/9/07_____________

Date

1 Due to a new data system, this case has been re-designated with the

above referenced number.

2 In Louthen, the Commission 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 witness 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. 01A33440 (May 17,

2006).

3 As noted by the agency, the Administrative Judge was in San Antonio,

Texas during the telephonic hearing, while the agency's witnesses and

counsel for both parties were in El Paso, Texas. Hearing Transcript at

4:1-4:9. While the driving distance between San Antonio and El Paso is

551 miles, according to www.randmcnally.com, there is no evidence in

the record which suggests that the Administrative Judge could not have

traveled to El Paso for the hearing.

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01A45758

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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