0120060799
03-12-2008
Michael J. Sparling, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Michael J. Sparling,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01200607991
Hearing No. 100-2003-08068X
Agency No. ARWRAMC01AUG004
DECISION
On November 14, 2005, complainant filed an appeal from the agency's
October 13, 2005 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. and 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
order.
At the time of events giving rise to this complaint, complainant
worked as a Foreman at the agency's Walter Reed Army Medical Center
(WRAMC) in Washington, D.C. Complainant contacted an EEO Counselor and
filed a formal EEO complaint on November 4, 2002, alleging that he was
subjected to a hostile work environment throughout his tenure at WRAMC,
on the bases of his race (Caucasian), disability (depressive and anxiety
disorders), and in reprisal for prior protected EEO activity including,
but not limited to, when:
1. he was terminated from his employment on May 29, 2003;
2. on October 17, 2002, management placed him in AWOL
status;
3. management issued him a letter of counseling in August 2002,
in addition to daily and weekly counseling;
4. his supervisor (S1) treated him in a demeaning manner;
5. his work was subjected to higher scrutiny;
6. on August 2, 2002, management threatened to place him on a
Performance Improvement Plan (PIP);
7. on or about April 4, 2002, management falsified his performance
appraisal by changing it to a score of Fair, which is level four, when
complainant was detailed to the preventative maintenance shop;
8. on or about May 28, 2002, management returned him to the
structural maintenance ship to work under S1 who was responsible for
creating a hostile work environment;
9. management repeatedly denied his requests for reassignment
from under S1;
10. he was suspended from October 21 to October 25, 2002;
11. in June 2001 management denied his request for a quality
step increase; and
12. on November 15, 2002, management placed him on a PIP.
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 May 3-6 and
May 13, 2005. The AJ then issued a decision on September 28, 2005,
finding no discrimination. 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. On appeal, complainant
reiterates his objection to the telephonic hearing, arguing that the
AJ missed parts of the testimony because of numerous distractions and
that she was unable to make proper credibility determinations because
she did not see the demeanor of the witnesses.
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 distant 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 record shows that all of the witnesses were
present at the WRAMC, and there is no evidence to suggest that the AJ was
unable to travel to Washington, D.C. in order to preside over the hearing
and personally assess the credibility of the witnesses. The record also
shows that complainant objected to the telephonic hearing. Moreover,
the record reflects that the AJ's decision rests almost entirely on
her credibility determinations of the witnesses with respect to S1's
motivations, concluding that "the conflicts between complainant and
[S1] had everything to do with personality differences and disagreements
over management style." (AJ Decision at 12). The AJ further concluded
that while S1 "considered the purpose of a supervisor's role to be to
get results." Complainant, on the other hand, "did not see as his
primary function to get the job done." This difference is what led
to the agency actions at issue. Id at 10. The AJ also made sweeping
judgments with respect to complainant's ability to manage his subordinates
and the reasoning behind his supervisory decisions. We find, however,
that a claim of hostile work environment harassment such as the one at
issue is precisely the type of case for which the AJ's ability to view
the demeanor of the witnesses and personally assess their credibility
is of paramount importance. 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. In view of the fact
that the matter at issue arose in Washington, D.C. and the likely parties
to be involved in a hearing on this matter are similarly located in
the Washington, D.C. area, we hereby REMAND this case for an in-person
hearing at the Washington Field Office.
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 Washington Field 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
March 12, 2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal 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).
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0120060799
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036