01a02534
02-15-2001
Julia LeBlond, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Julia LeBlond v. Department of the Treasury
01A02534
February 15, 2001
.
Julia LeBlond,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A02534
Agency No. 97-3239
Hearing No. 160-98-8095X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.<1> Complainant
alleges she was discriminated against on the basis of age (DOB:
08/28/1948) when: she was not selected for the position of Customs
Inspector announced under vacancy announcement NYORK/96-028CAW; and a
younger employee, who initially failed training, was allowed to return
to training without reapplying through the merit promotion system.
For the following reasons, we affirm the agency's final decision.
The record reveals that complainant, a Cashier at the agency's Customs
Service facility in Newark, New Jersey, filed a formal EEO complaint with
the agency on June 27, 1997, alleging that the agency had discriminated
against her as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge. When complainant failed
to respond to a Pre-Hearing Order, the Administrative Judge canceled the
hearing and remanded the complaint to the agency with a recommendation
that the agency issue a final decision.<2> The agency subsequently
issued a final decision finding no discrimination from which complainant
now appeals.
Based on the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue), the Commission finds that assuming arguendo complainant
establishes a prima facie case of age discrimination, there is not a shred
evidence in this record to support a finding that "but for" complainant's
age, she would have been selected or permitted to return to training
without reapplying through the merit promotion system. Therefore, after
a careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we affirm the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
February 15, 2001
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The Administrative Judge took this action because complainant failed to
respond to an Order requiring complainant to inform the Administrative
Judge of her request for witnesses or her decision to proceed with the
hearing without calling any witnesses. The Administrative Judge had
provided complainant with notice that her failure to respond to the Order
could result in the remand of her complaint to the agency. There is
no evidence in the record that either complainant or complainant's
counsel proffered any explanation to the Administrative Judge for the
failure to respond to the Order, nor is there any evidence of good
cause to excuse the failure to respond. Accordingly, the Commission
finds that the Administrative Judge's decision to treat complainant's
conduct as a withdrawal of her hearing request was proper. 29 C.F.R. �
1614.109(f)(3)(v).