Priscilla R. Lopez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Appeal No. 01A40580 Hearing No. 350-A1-8369X Agency Nos. 4E-870-0149-00, -0054-01, & -0022-03 DECISION On October 28, 2003, complainant filed an appeal from the agency's September 29, 2003 final order concerning her equal employment opportunity (EEO) complaints 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. The appeal is deemed timely and is accepted pursuant to 29 C.F.R. § 1614.405(a). During the relevant period, complainant was employed as a Rural Route Carrier at a New Mexico facility of the agency. Complainant filed three separate formal EEO complaints alleging that the agency subjected her to a hostile work environment based on race (Hispanic[1]), color (brown), sex (female), national origin (Mexican) and reprisal for prior EEO activity when (1) in April 1999, it issued complainant a letter of warning for failure to comply with an order to establish a formal reporting time, (2) in April 1999, it threatened complainant with termination if she did not locate an alternative means to deliver her route when her delivery vehicle, which is her personal vehicle, became disabled, (3) in May 2000, it informed her that the union requested her files and she should be concerned about its request, (4) in May 2000, it ordered complainant to leave the work area following an investigation of a vehicular accident involving complainant, (5) in May 2000, it issued complainant a 14-day paper suspension regarding the vehicular accident, (6) in June 2000, complainant's supervisor initiated a verbal confrontation with complainant regarding the vehicular accident, (7) in June 2000, it directed complainant, on a Friday, to obtain a vehicle inspection by a certified mechanic by the end of the following Monday, (8) in June 2000, it directed complainant to not speak with coworkers in the work area, (9) in June 2000, it issued complainant a letter of warning regarding the vehicular accident[2], (10) on December 14, 2000, it denied her request for parcel assistance, and (11) on October 1, 2002, it denied her request for light duty to accommodate her pregnancy. The agency conducted investigations of complainant's claims. At the conclusion of its investigations, the agency provided complainant with a copy of the reports of investigation; and notice of the right to elect a hearing before an EEOC Administrative Judge (AJ) or an immediate final decision by it. Complainant requested a hearing, during which the AJ consolidated complainant's three complaints for processing. On July 28, 2003, the AJ conducted a telephonic hearing for complainant's claims[3], without apparent objection from either party. Subsequently, the AJ issued a decision finding no discrimination. Specifically, the AJ concluded that complainant failed to show that the agency's actions rose to the level of a hostile work environment or were based on the statutorily protected classes she alleged. In a decision dated September 29, 2003, the agency accepted and fully implemented the AJ's finding of no discrimination. The instant appeal followed. 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). Finally, the Commission notes that the hearing in this case was held by telephone at the AJ's behest, without the objection of the parties.[4] The Commission has 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. Louthen v. United States Postal Service, EEOC Appeal No. 01A44521.[5] However, since the facts of this case pre-date Louthen we will assess the propriety of conducting the hearing telephonically by considering the totality of the circumstances. Here, it is unclear whether exigent circumstances existed. On the other hand, it is clear that there were no issues of witness credibility that might have been impacted by the taking of testimony telephonically. Under these circumstances, even if it is assumed that the AJ abused his discretion in this case by taking testimony telephonically, the Commission finds that his action constituted harmless error. After a careful review of the record, including complainant's contentions on appeal and arguments and evidence not specifically addressed in this decision, we find that the substantial evidence of record supports the AJ's finding of no discrimination. Thus, we affirm the agency's decision. 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 tends 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 July 18, 2006 __________________ Date ----------------------- [1]We note that the Commission recognizes "Hispanic" as the protected class of national origin rather than race. [2] We note that the suspension at issue in (5) was reduced to the instant letter of warning under the negotiated grievance process. [3] We note that the distance between the locations of the AJ and where the witnesses congregated for the hearing (agency facility in Las Cruces, New Mexico) is approximately 600 miles with a travel time of about eight and a half hours. [4]The mere lack of objection is not dispositive, however. See Louthen v. United States Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006). [5] In Louthen, the Commission has 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. Further, where telephonic testimony was improperly taken, the Commission will scrutinize the evidence of record to determine whether the error was harmless, as is found in this case.