The Commission notes that the hearing in this case was held by telephone,
with the AJ participating by telephone, while the parties and witnesses
met at a single location in Washington D.C. Both parties objected to
telephone hearing format both at the outset of the hearing and at various
points during the taking of witness testimony. On appeal, complainant
argues that the AJ should not have conducted the hearing by telephone.
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. See Louthen
v. United States Postal Service, EEOC Appeal No. 01A44521 (May 17,
2006).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, no exigent
circumstances existed. We note, however, that the AJ’s decision does
not rely on conclusions regarding witness credibility that have been
impacted by the taking of testimony telephonically. The AJ made no
credibility determinations based upon any witness’s general demeanor,
manner of testifying, or tone of voice. Under these circumstances,
even if it is assumed that the AJ abused her discretion in this case by
taking testimony telephonically, the Commission finds that her action
constituted harmless error. See Garcia v. United States Postal Serv.,
EEOC Appeal No. 01A45437 (July 19, 2006).
