On November 16, 2006, in Sandra Herges v. Department of Justice, Bureau of Prisons, EEOC Appeal No. 0120051636, the Equal Employment Opportunity Commission vacated an administrative judge’s (AJ) decision after determining that the AJ abused her discretion by conducting the hearing via telephone rather than in person. The appellant, Ms. Herges, was represented by Debra D’Agostino of Passman & Kaplan, P.C.
Ms. Herges filed a formal complaint of discrimination after she was not selected for promotion. On June 4, 2003, Ms. Herges, who worked at the Bureau of Prisons’ central office in Washington, D.C., requested a hearing before an AJ in the Washington D.C. field office. On June 9, 2004, the case, along with several others, was transferred to the San Antonio district office due to the heavy case load of the Washington D.C. field office. On August 23, 2004, the AJ held a hearing via telephone from San Antonio while the witnesses and parties’ representatives were all in a conference room in Washington, D.C. The AJ then issued a decision finding of no discrimination, which was adopted by the agency.
On appeal, Ms. Herges asserted that the AJ’s credibility findings were not supported by substantial evidence because the AJ conducted the hearing by telephone and, therefore, was unable to observe witness demeanor. The Commission held, pursuant to its recent decision in Louthen v. United States Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006), that absent exigent circumstances, e.g., if the complainant is disabled and unable to get to a hearing location or if a witness has been deployed on military duty, the conduct of a hearing by telephone should not occur and is inappropriate. The Commission found that no exigent circumstances were present in this case and that the AJ could have traveled to Washington, D.C. for the hearing.
Further, the Commission was concerned because the AJ’s decision in this case rested on her credibility determinations, including the credibility of the management officials involved in the selection. As examples, the Commission pointed out that the AJ “implicitly credited” the selecting official’s testimony when he testified that he failed to keep his notes from the reference checks because this was his first selection and he had not read the policy requiring him to retain the notes. The AJ also found that the selecting official’s explanation about his visit to the selectee prior to the selection was credible despite that, as the Commission stated, his “hearing testimony on his issue appeared evasive.” Finally, the Commission found it troubling that the AJ determined the testimony of the selecting official was “believable” although she never indicated or explained what about the testimony made it credible.
As relief, the Commission remanded Ms. Herges’ complaint back to the Washington D.C. field office for an in-person hearing before a newly assigned AJ. The Commission’s ruling in this case underscores the importance of credibility determinations in EEO cases, where there are often conflicting versions of the same event, and the duty of AJ’s to make credibility determinations by personally observing the demeanor and conduct of the witnesses.
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