0120131585
08-13-2013
Kimberly V. Madaris, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Kimberly V. Madaris,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120131585
Hearing No. 470-2012-00052X
Agency No. 1C-451-0041-11
DECISION
On February 28, 2013, Complainant timely filed an appeal from the Agency's January 30, 2013, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Cincinnati Processing & Distribution Center (P&DC) in Cincinnati, Ohio.
On August 20, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her race (African-American), sex (female), color (Black), disability (cervical herniation), and age (40) when on June 16, 2011, she was denied the reasonable accommodation of temporary light duty.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing and the AJ held one on November 15 and 16, 2012, and issued a decision on November 16, 2012. The Agency subsequently issued a final order adopting the AJ's finding of no discrimination.
On appeal, Complainant makes argument through her representative. She argues, in relevant part, the following. She argues that the investigation was insufficient.
She argues that while the AJ in July 2011 approved her supervisor as a witness, less than two days prior to the hearing the Agency claimed he was unavailable to appear because of a vacation. Complainant argues that this was an attempt by the Agency to derail her case. The supervisor testified telephonically. Complainant argues that while the Senior Plant Manager was approved as a witness by the AJ, the Agency's attorney representative provided a letter by the Senior Plant Manager indicating he had no information to provide, and he was not required to testify.
Complainant argues that the AJ incorrectly declined to consolidate her complaint with a second complaint by her, and that her claim should have dated back to March 11, 2011. She also argues that the AJ stopped her from asking necessary questions.
In opposition to the appeal the Agency argues, in relevant part, that Complainant's supervisor was unavailable to testify in person because of a vacation, that Complainant's representative agreed to allow him to testify by telephone, and Complainant did not object in any way. Regarding the Senior Plant Manager the Agency argues that he affirmed that he had no role in the decision at issue, and Complainant's representative said he would not be calling him as a witness. The Agency's representative submits an affidavit in support of the above. The Agency argues that the hearing was properly conducted.
ANALYSIS AND FINDINGS
In Louthen v. United States Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006), the
Commission addressed the issue of telephonic hearings and testimony. The Commission concluded that AJs should not conduct telephonic hearings or take testimony by telephone, except where there are exigent circumstances or a joint and voluntary request by the parties. Where exigent circumstances exist, the AJ must find and document that the situation requires a hearing or testimony by telephone. If exigent circumstances are not present, to hold a telephonic hearing or take testimony by telephone requires that the parties submit a joint request to the AJ, and, prior to the hearing, the AJ must obtain a statement of consent reflecting that they have been informed of the limitations of taking testimony telephonically. Further, the AJ must be satisfied that it is unlikely that that the credibility of any witness testifying telephonically will be at issue. The parties' joint request as well as the AJ's ruling on it must be documented in the record.
The record before us does not contain a finding of exigent circumstances or a joint request for taking the testimony of the supervisor by telephone, nor a documented ruling on the matter by the AJ. Given these circumstances, pursuant to the language in Louthen, we find that the AJ abused his discretion to hold a hearing and take testimony by telephone.
Complainant did not object during the hearing to the Senior Plant Manager not testifying, despite being given an explicit opportunity by the AJ to raise objections, and does not contest the Agency's account on appeal regarding the Senior Plant Manager not testifying. Given this, we find that there was no error in the Senior Plant Manager not testifying.
Based upon our review of the record, we find that the EEO investigation was sufficient. We add that Complainant had an opportunity to further develop the record during the hearing process. The AJ indicated that he declined to consolidate Complainant's case with a second complaint because the hearing was going forward and the second case was not ripe for a hearing. The AJ did not abuse his discretion in so ruling. At the start of the hearing, the AJ stated the substantive claim to be heard as recounted above, asked if there were any objections, and received none. Given this, we decline to find that the AJ improperly defined the complaint. Also, based upon our review of the hearing transcript, we find that with the exception of the Louthen issue, the hearing was properly conducted.
The Agency shall comply with the order below.
ORDER
The Agency is directed to take the following actions:
A. Within 15 calendar days of the date this decision becomes final, the Agency shall submit to the EEOC Indianapolis District Office Hearings Unit a request that the testimony of Complainant's supervisor be taken in person with the opportunity for cross examination by Complainant.1 Complainant may also request an opportunity to present relevant rebuttal evidence/testimony following the supervisor's testimony. The Agency shall include a cover letter explaining that this request is being made pursuant to this decision.
B. Within fifteen (15) calendar days of the date this decision becomes final, the Agency is directed to submit a copy of the full complaint file, hearings record, and a copy of this decision to the above EEOC Hearings Unit.
C. After appropriately processing the Agency's request, 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.
A copy of the Agency's letter to the EEOC Hearings Unit requesting that the testimony be taken in person must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 13, 2013
__________________
Date
1 The supervisor is the witness who testified by telephone, and whose testimony started in the hearing transcript on pages 22 and 23.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120131585
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131585