Aloysius J. Sims, Complainant,v.Michael W. Wynne, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMay 23, 2007
0120063687 (E.E.O.C. May. 23, 2007)

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.

??

??

??

??

2

0120063687

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0120063687