Initially, we address the matter of sanctions. Complainant contends that
sanctions are warranted based on the numerous excessive (and unexplained)
agency delays which are documented in the record, and she contends that
the AJ should have imposed them against the agency. Complainant asks
the Commission to impose sanctions and draw adverse inferences against
the agency at this juncture. First, we discern no abuse of discretion
on the part of the AJ. Administrative Judges have broad discretion in
the conduct of hearings. See 29 C.F.R. § 1614.109(e); Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110)
at 7-8 to 7-14 (revised November 9, 1999); Bennett v. Department of the
Navy, EEOC Request No. 05980746 (September 19, 2000). In so finding,
we note that it appears that much of the reason for the delay in the
processing of this case was that on June 25, 2002, when the Commission
remanded the claims herein to the agency for further processing, the
agency had already purged the file, and the file subsequently had to be
reconstructed. Complainant notes, but does not specifically dispute, that
the file was purged because the regulatory retention period had expired.
Although the agency ought to have more immediately notified the Commission
that the file in this case was purged, we decline to find that the AJ’s
failure to issue sanctions, constituted an abuse of discretion.
Additionally, complainant asserts that because so much time passed during
the processing of this complaint, she either misplaced or lost documents
relating to her claims, and cannot recall certain details concerning the
case, which places her at a severe disadvantage since under Title VII,
the initial and final burden of proof is on complainants to establish
discrimination and/or retaliation. Although we are sympathetic to the
fact that it is difficult to keep track of relevant documents through
the passage of years, the agency cannot be held responsible for any
documents that complainant may have misplaced or lost. For these
reasons, we decline to impose sanctions or draw adverse inferences
against the agency.
Next, we address the fact that the hearing was partially conducted
telephonically, without the objection of the parties.6 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 special conditions have been met. Louthen v. United States
Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006).7 Since
the facts of this case pre-date Louthen however, we will assess the
propriety of conducting the hearing telephonically, by considering
the totality of the circumstances. First, we find that there were
not exigent circumstances in this case. However, we do not discern
any specific issues of credibility that might have been affected by
the taking of some witnesses’ testimony telephonically. In addition,
the AJ noted that he relied more on the documentation in the record,
than on the testimony for his decision. The AJ stated “This case,
therefore, is ten-plus years old and for that reason I did not find
the witness testimony particularly helpful. Most of the witnesses’
testimony was that they did not have any specific recollection of the
events and most of the testimony related to simply verifying documents
that they either had seen or had signed. In many ways the most important
evidence in this case is really the documentation.” AJ Decision at 6-7.
Under these circumstances, the Commission finds that the taking of the
testimony telephonically constituted harmless error. See Sotomayor
v. Department of the Army, EEOC Appeal No. 01A43440 (May 17, 2006).
The allocation of burdens and order of presentation of proof in a
Title VII case alleging disparate treatment discrimination is a three
step procedure: complainant has the initial burden of proving, by a
preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
