Julia LeBlond, Complainant,v.Paul H. O'Neill, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionFeb 15, 2001
01a02534 (E.E.O.C. Feb. 15, 2001)

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).