0120063687
05-23-2007
Aloysius J. Sims, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Aloysius J. Sims,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01200636871
Agency No. 9U0J04017H05
Hearing No. 310-2005-00486X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 5, 2006 final order concerning his 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. Complainant alleged that the
agency subjected him to a hostile work environment on the basis of race
(African-American) and in reprisal for prior protected EEO activity
(arising under Title VII). Complainant claims that the harassment
culminated in an involuntary reassignment by his first and second level
supervisor on September 19, 2004.
Complainant timely requested a hearing before an EEOC Administrative
Judge (AJ) which was held on March 7, 2006. On March 23, 2006, the AJ
issued her decision finding no discrimination or harassment. The agency
subsequently adopted the AJ's decision in its final order.
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 Brd., 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. The AJ's
credibility determinations based on the demeanor or 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. (Nov. 9, 1999).
We note that certain witnesses testified telephonically at the hearing.
We have recently 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 Louthern
v. United States Postal Serv., EEOC Appeal No. 01A44521 (May 17, 2006);
Sotomayor v. Dep't of Army, EEOC Appeal No. 01A43440 (May 17, 2006);
Rand v. Dep't of Treasury, EEOC Appeal No. 01A52116 (May 17, 2006).3
The facts in the instant case, however, pre-date our decisions on
telephonic hearings; therefore, we assess the AJ's conduct in holding
a telephonic hearing by considering the totality of the circumstances.
See Villanueva v. Dep't of Homeland Sec., EEOC Appeal No. 01A34968
(Aug. 10, 2006). It is unclear to us whether exigent circumstances
existed, yet even assuming there were none, we find that there were also
no issues of witness credibility that might have been impacted by the
taking of testimony telephonically. Moreover, the AJ also relied on
the testimonies of other live witnesses who corroborated the agency's
position that complainant was reassigned because he had problems relating
to co-workers. As such, we conclude that the taking of telephonic
testimony amounted to a harmless error.
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
May 23, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
3 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 witnesses testifying telephonically is at
issue, and the importance of the testimony given telephonically.
In Sotomayor, we further held that where telephonic testimony was
improperly taken, the Commission will scrutinize the evidence
to determine whether the error was harmless, as is found in
this case.
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0120063687
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063687