0520120092
04-27-2012
Alan J. Seinfeld, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Alan J. Seinfeld,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Request No. 0520120092
Appeal No. 0120112625
Hearing No. 520-2008-00478X
Agency No. IRS-08-0120-F
DENIAL
Complainant timely requested reconsideration of the decision in Alan J. Seinfeld v. Department of the Treasury, EEOC Appeal No. 0120112625 (October 19, 2011).1 EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In our consolidated previous decision, we affirmed the Agency's final action adopting the EEOC Administrative Judge's (AJ) decision, which was issued following a hearing. We found that Complainant had not established that he was subjected to discrimination based on age when he was not selected for a GS-14 Team Coordinator position advertised under Vacancy Announcement No. 60-65-LMB70700. We found that the AJ's decision, which noted that the selectee was chosen because he had five years of GS-14 experience and was a leader in the Agency's Compliance Assurance Process (CAP) program, was supported by substantial evidence in the record. We found that substantial evidence in the record further supported the AJ's finding that Complainant failed to prove that his qualifications were "plainly superior" to those of the selectee. We found that the weight of the evidence revealed that the selecting official chose the selectee because she believed that he was better qualified for the position.
In his request for reconsideration, Complainant, in pertinent part, contends that the selecting official became upset that he was applying for the position because he had announced his intention to retire. Complainant contends that on October 9, 2007, the selecting official stated to the union president that she would never consider selecting him, and stated, "Why is [Complainant] busting my chops?" Complainant contends that the selectee was not eligible for promotion because his score ranked fifth, and only the top four applicants were eligible for selection. Complainant contends that the selecting official preselected the selectee.
We remind Complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). We determine the previous decision did not clearly err in finding substantial evidence to support the AJ's finding that Complainant could not establish pretext. We note that, even if pre-selection took place, we have found that pre-selection, per se, does not establish discrimination when it is based on the qualifications of the selected individual and not discriminatory animus. McAllister v U.S. Postal Serv., EEOC Request No. 05931038 (July 28, 1994).
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120112625 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
April 27, 2012
Date
1 Complainant's previous decision was consolidated with appeals by Cathy Rich, Jo-Ann Lechner, and Jack Israel, EEOC Appeal Nos. 0120112698, 0120112765, and 0120112547. None of those Complainants have filed requests for reconsideration.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0520120092
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120092