By Meghan Droste, March 13, 2019

As someone who is, shall we say, mildly obsessed with the musical Hamilton, I have to admit that I’m amazed that it took me over a year of writing these articles to work in a reference. We had to wait for it (that’s my favorite song so you’ll have to forgive me) but now I can say that I’m not throwing away my shot (ok, I’ll admit, that one was a reach) and I’m satisfied (that’s the last one, I promise).  Now that I have that out of my system, we can get down to the real purpose of this article.  This month’s Commission decision summary is all about who gets to be in the room where it happens—i.e. the hearing—and who needs to wait outside.

In Katharine B. v. U.S. Postal Service, EEOC App. No. 0120170444 (December 7, 2018), the administrative judge held a two-day hearing and then issued a decision finding no liability.  During the hearing, the administrative judge allowed the complainant’s first line supervisor, who was also named as the harasser in the complaint, to remain in the hearing room as the agency’s representative (the person sitting in for the agency, not the person representing the agency by questioning witnesses or presenting arguments) during the testimony of other witnesses.  The complainant objected to the supervisor’s presence but the administrative judge overruled the objection. Rather than excluding the supervisor outright, the administrative judge asked each witness before the start of their testimony if they were comfortable with the supervisor being present. Four of the witnesses stated that they were not comfortable and the supervisor was excused during their testimony. The supervisor was present for the rest of the hearing.

The Commission reversed the finding of no liability and remanded the complaint for a new hearing based on the decision to allow the supervisor to be present during the testimony of other witnesses. Although, as the Commission noted, administrative judges have broad discretion in regulating what occurs during a hearing, that discretion is not without limits. The Commission found that the supervisor’s presence had the potential to chill the testimony of the complainant or the other witnesses.  As a result, allowing the supervisor to stay in the room “violate[d] the prohibition against interference with the with the EEO process.” The Commission also noted that there is a conflict of interest when the agency’s representative also serves as a witness in the complaint.

Hearings can be interesting; three of my colleagues just finished the first two weeks of a lengthy hearing and I wish I could have been there to just listen in.  The desire to be in the room where it happens is understandable (just ask Aaron Burr), but we can’t let that desire impact the outcome. Droste@FELTG.com

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