01a21449_r
09-10-2002
Frank Lattanzio, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Frank Lattanzio v. Department of the Treasury
01A21449
September 10, 2002
.
Frank Lattanzio,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A21449
Agency No. 98-3104
Hearing No. 160-98-8473X
DECISION
The record indicates that complainant filed an appeal from the agency's
final action dated January 10, 2002, finding that he was not discriminated
against on the bases of race (White), sex (male), and age (DOB 5-21-1947),
when he was not selected for the position of Division Operations Officer,
GS-1811-14, advertised under Vacancy Announcement Number 97-246 MA/jj.
For the reasons described below, the Commission affirms the agency's
final action.
The record reveals that complainant, a GS-13 Criminal Investigator/Special
Agent with the Bureau of Alcohol, Tobacco and Firearms' Albany, New York,
Field Operations, filed a formal EEO complaint with the agency on January
28, 1998. At the conclusion of the investigation, complainant requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination.
The AJ determined that complainant established a prima facie case of
discrimination. The AJ further concluded that the agency articulated
a legitimate, nondiscriminatory reason for its action. A Selecting
Official for the alleged position stated that he chose the Selectee
over complainant after weighing such factors as: number of years of
experience; positions held (including acting designated details); and
performance evaluations and Narrative Criteria Evaluations. The Selecting
Official purported to favor the Selectee because of her experience as the
Senior Operations Officer, Acting Division Operations Officer and the
Division DCIP, plus the strong written recommendations by the SAC and
ASAC at the bottom of her Narrative Criteria Evaluation. The AJ found
that the agency articulated a legitimate, non-discriminatory reason for
its action. The AJ also found that complainant did not establish that
more likely than not, the agency's articulated reason was a pretext to
mask unlawful discrimination. The agency's final action implemented the
AJ's decision. Complainant makes no new persuasive contentions on appeal.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, the agency's final action is hereby
AFFIRMED because the AJ's issuance of a decision without a hearing was
appropriate and a preponderance of the record evidence does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 10, 2002
__________________
Date