0120072894
08-13-2007
Roger C. Tudor, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Roger C. Tudor,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120072894
Agency No. IRS-06-0646-F
Hearing No. 450-2007-00055X
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. Complainant alleged that he was
subjected to discrimination on the bases of race (Caucasian) and age
(date of birth: October 21, 1959) when:
1. On November 14, 2005, complainant was placed on Temporary Restrictive
Duty.
2. On November 22, 2005, complainant was replaced as the Supervisor
Special Agent of Group 3.
Following a hearing, an EEOC Administrative Judge (AJ) issued a decision
on March 28, 2007, finding that complainant had not been discriminated
against. On May 11, 2007, the agency issued a decision finding
no discrimination. The agency fully implemented the AJ's decision.
Complainant now appeals from that decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
We find that the agency articulated a legitimate, nondiscriminatory reason
for its actions. Regarding claim 1, the Special Agent in Charge (SAC)
stated that, prior to his arrival in July, 2005, irregularities were
discovered in complainant's group by an acting assistant special agent
in charge (ASAC). The SAC asserted that he was tasked with resolving
the matter. The SAC explained that the first step in accomplishing
that goal was to move complainant to a different supervisory position in
downtown Dallas, Texas, where on-site supervision could be provided. The
SAC claimed that subsequently two officials from outside his office's
territory conducted a management inquiry that recommended that
complainant be removed from his supervisory position and reassigned as a
non-supervisory special agent. The SAC articulated that further review of
the allegations against complainant indicated that a violation of Section
1203 of the IRS Reform and Restructuring Act of 1998 had likely occurred.
The SAC said that, pending the results of the 1203 investigation, it
was in the best interests of the government that complainant be placed
on Temporary Restricted Duty.
As to claim 2, the SAC stated that the Group 3 supervisor position was
made before complainant was removed from his supervisor position, although
the report date was on a later date. The SAC said that complainant was
not demoted and that his former position had only been temporarily filled.
The SAC claimed that the Inspector General investigation was completed
at the end of 2006 and has been administratively referred back to him
to resolve. The Director of Field Operations said that the SAC consulted
with him and he concurred in all actions taken by the SAC in this case.
The SAC articulated that complainant had not been demoted and that
complainant had a position to return to if he was exonerated in the
investigation.
The Commission finds that complainant failed to rebut the agency's
articulated legitimate, nondiscriminatory reasons for its actions.
Moreover, complainant failed to show, by a preponderance of the
evidence, that he was discriminated against on the bases of race or
age. Substantial evidence of record supports the AJ's finding of no
discrimination.
The agency's decision finding no discrimination is AFFIRMED.
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
August 13, 2007
__________________
Date
2
0120072894
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120072894