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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0120045758