Karen Allen v. United States Postal Service 01A51259 . Karen Allen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Appeal No. 01A51259 Agency Nos. 4J-480-0072-02, 4J-480-0085-02 Hearing Nos. 230-2004-00013X, 230-2004-00014X DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts the complainant's appeal from the agency's final order in the above-entitled matter. Complainant alleged that the agency had discriminated against her: (1) on the basis of sex (female)1 when she was denied a Custodian position, on or about March 23, 2002; and (2) on the bases of sex (female) and reprisal (prior EEO activity) when she was placed on emergency leave and issued a notice of removal, subsequently reduced to a fourteen-day suspension, on or about May 7, 2002. Following investigation of these claims, complainant requested a hearing before an EEOC Administrative Judge (AJ). Prior to the hearing, the agency moved for summary judgment, opposed by complainant. The AJ granted the agency's motion for summary judgment with regard to Claim 2, but set the case for hearing with regard to Claim 1. The hearing was held by video-conference. The AJ appeared from a video-conferencing facility in Baltimore, Maryland, while the parties, together with their representatives and witnesses, convened in a facility in Detroit, Michigan, near to where the events at issue giving rise to the complaint transpired.2 Following the hearing, the AJ issued a decision finding no discrimination as to both claims. The agency then issued a final agency order (FAO) fully implementing the AJ's decision. It is from that FAO that complainant now appeals. Complainant was employed as a Clerk, PS-5, in the agency's Port Huron, Michigan Post Office. Complainant expressed interest in reassignment to a Custodian position which, while paying a lower hourly rate, offered additional overtime that would have resulted in complainant being able to earn more money. Complainant was not permitted to bid on the Custodian position, which was awarded to a male Clerk with less seniority than complainant (Employee 1, E-1). The agency explained that at the time, Custodian positions were being held open for Clerks whose positions had been declared excess. E-1's position had been declared excess. Therefore, in accordance with the relevant provisions of the National Labor Agreement and local memoranda of understanding (MOUs), identified by the agency's witnesses at the hearing, E-1 was placed in the Custodian position.3 Complainant argued that because of her seniority, she should have been allowed to voluntarily transfer to the Custodian position, while E-1 could then remain in a Clerk position. Complainant relied upon the testimony of LM, a union official, to support her position. However, LM's testimony to that effect relied on a general provision of the National Labor Agreement, which states that "Dislocation and inconvenience to full-time and part-time flexible employees shall be kept to a minimum consistent with the needs of the Service." Neither complainant nor LM was able to identify any provision of the National Labor Agreement or MOUs which explicitly supported complainant's position. Video Conferencing As a preliminary matter, the Commission notes that the propriety of a video-conference hearing is a matter of first impression. The Commission has, however, recently addressed the use of telephone conferencing. In Louthen v. United States Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006), the Commission promulgated its policy regarding the taking of testimony by telephone. The Commission in Louthen expressed its strong preference for in-person hearings, given the deference afforded an AJ's post-hearing factual findings in general, and his or her demeanor-based credibility determinations in particular. The Commission nonetheless allowed that circumstances might necessitate the use of telephonic testimony, and that such use would be acceptable provided certain standards were met. The Commission held that testimony may be taken by telephone where either there has been a finding of exigent circumstances, or at the joint and voluntary request of the parties with their informed consent. The taking of testimony by telephone which does not meet these requirements constitutes an abuse of the AJ's discretion. Louthen, EEOC Appeal No. 01A44521; Sotomayor v. Department of the Army, EEOC Appeal No. 01A43440 (May 17, 2006); Rand v. Department of the Treasury, EEOC Appeal No. 01A52116 (May 17, 2006). While Louthen informs the Commission's perspective on video conferencing, the comparison of the two technologies, telephone and video, is not exact. Video conferencing offers a level of observation and direct communication unavailable in a telephonic hearing, and provides a sense of presence and judicial decorum that cannot be conveyed by telephone. The Commission, as is the case with other federal agencies, must continually strive to do more with less, looking to technological advances to improve its efficiency. While the Commission's preference remains that hearings be held in person, the Commission recognizes that with appropriate safeguards, video conferencing may provide an acceptable alternative to an in-person hearing, allowing the Commission to provide more, and more efficient, service to the federal sector.4 Because a video-conference hearing more nearly approximates an in-person hearing than a telephonic hearing, the Commission finds it appropriate to allow AJs greater latitude in determining whether to conduct a hearing by video conference. While there is no "bright line" standard, cf. Louthen, and the AJ need not routinely justify the determination to conduct the hearing by video conference, there are a number of factors that the AJ nonetheless should consider before electing to proceed. These factors include the availability and proximity to the participants of the video-conferencing facilities5; the adequacy of the available video-conferencing facilities, including any technological issues; the cost to the respondent agency (if any) balanced against the savings in travel time for all parties, and the AJ; the number of expected participants; and the objections of the parties, if any. Should a party object to conducting the hearing by video conference, the AJ will document for the record both the nature of the objection and his or her ruling on the objection, including the reasons therefore.6 Before proceeding with a video conference hearing, the AJ will ensure that the hearing, as conducted in this format, will provide a "fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." EEOC Management Directive 110, Section 7-1 (revised November 9, 1999). Because hearings are part of the investigative process and are closed to the public, pursuant to 29 C.F.R. § 1614.109(e), the AJ will ensure the privacy of the video transmission. At the start of the hearing, the AJ will ensure that there are no technological problems that could impede the conduct of the hearing. The AJ will make sure that the video and audio transmissions are clear to all participants at all conference sites. A video conference that allows the AJ to observe all participants simultaneously presents the best opportunity for the AJ to assess all of the evidence presented and to ensure against any misconduct. Should technical difficulties arise during the hearing, the hearing cannot continue via video conference until such difficulties are resolved. Interruptions to the proceedings due to technical difficulties will be documented in the record. In the instant case, the AJ provided the parties with advance notice of his intention to proceed by video conference. The hearing record, which includes the various pre-trial motions and briefs of the parties, reflects no objection to the use of video-conferencing.7 While the hearing transcript reflects two instances of technical difficulties, it further reflects that these difficulties were successfully resolved without loss of testimony. In addition, the case involved a single complainant, limiting the number of persons who would be present in the hearing room at any given time to a small (and therefore manageable) number. Under the circumstances, the Commission concludes that the AJ did not abuse his discretion by electing to hold a video-conference hearing. Claim 1 Turning now to the merits of Claim 1, 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. In the instant case, the AJ's post-hearing findings - among them, that the agency acted in accordance with its established procedures regarding assignment to Custodian positions - are supported by substantial evidence of record. Complainant has advanced neither evidence nor argument sufficient to warrant modification of the AJ's decision. Claim 2 Subsequent to the events set forth in Claim 1, complainant was involved in a confrontation with a coworker (E-2), wherein the two argued about how work was to be performed. Complainant reportedly slapped E-2 in the face.8 In keeping with the agency's "zero tolerance" policy, complainant was placed on emergency leave, and was thereafter issued a notice of removal. The removal was reduced to a fourteen-day suspension through the negotiated grievance process. The record reflects that E-2, who did not strike complainant, also was placed on emergency leave and received a fourteen-day suspension. As explained by the Commission in Callegari v. United States Postal Service, EEOC Appeal No. 01986651 (July 13, 2001): [S]ummary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. In ruling on a motion for summary judgment, a court does not sit as a fact finder. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. A disputed issue of fact is genuine if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. A fact is material if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding under Title VII, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition. (citations omitted) Upon review of the record, the Commission finds that the AJ correctly determined that there were no genuine issues of material fact. Complainant has not established that she was treated less favorably than any similarly situated coworker with regard to the disciplinary action taken against her. Further, complainant does not dispute that she engaged in physical contact with E-2, in violation of the agency's "zero tolerance" policy. Accordingly, we find that the AJ correctly determined that summary judgment in favor of the agency was appropriate. Based upon the foregoing, after a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final order. 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: ______________________________ Stephen Llewellyn Acting Executive Officer Executive Secretariat __________________ Date 1Complainant initially alleged age discrimination as well, but apparently withdrew that basis prior to the hearing. 2The record contains little detail about the logistics of the hearing. Apart from the location of the participants, the record reflects only that the participants included complainant, her attorney, the agency representative, and four witnesses in addition to complainant. 3Approximately five months later, the restriction on Custodian positions was lifted, and complainant was transferred to the position she desired. 4Hearing by video conference is already an established fact at other federal agencies, including the Merit Systems Protection Board. Koehler v. Department of the Air Force, MSPB Docket No. DA-0752-03-0530-I-2 (June 28, 2005) (MSPB AJ may hold hearing by video-conference over the objection of the parties). 5"Proximity" in this instance refers to whether the facility is within reasonable commuting distance for the hearing participants. The Commission notes, however, that considerations of proximity will generally exclude the use of video conferencing when all participants and the AJ are located within commuting distance of an appropriate location for an in-person hearing. Cf. Louthen v. United States Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006) (telephone hearing inappropriate where, inter alia, all participants including AJ were present in same city on hearing date). 6In this regard, the Commission contemplates that the AJ will provide the parties advance notice of his or her intention to proceed by video conference, allowing opportunity for the parties to object prior to the time the hearing is convened. Objections to video conference raised on appeal will be reviewed by the Commission under the abuse of discretion standard, on a case-by-case basis. See Louthen, EEOC Appeal No. 01A44521. 7The absence of an objection to the means by which a hearing is held is not dispositive; rather it is merely one of the factors to be considered. See Louthen, EEOC Appeal No. 01A44521. 8Complainant stated in the course of the investigation that E-2 was standing very close to her, and that she pushed him in the chest to move him away from her and her hands "slipped." Both E-2 and an eyewitness, initially proffered by complainant, stated that complainant slapped E-2 in the face. ?? ?? ?? ?? U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, D.C. 20507 01A51259 8