0120112625
10-19-2011
Alan J. Seinfeld, Cathy Rich, Jo-Ann Lechner and Jack Israel, Complainants, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Alan J. Seinfeld, Cathy Rich, Jo-Ann Lechner and Jack Israel,
Complainants,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal Nos. 0120112625, 0120112698, 0120112765, 0120112547
Hearing Nos. 520-2008-00478X, 520-2009-001017X, 520-2009-00068X, 520-2009-00006X
Agency Nos. IRS080120F, IRS080196F, IRS080093F, IRS080190F
DECISION
On April 13, 22, 25, 2011, Complainants filed separate appeals from the Agency's March 25, 2011, final order concerning their equal employment opportunity (EEO) complaints alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The record reveals that an Administrative Judge for the Equal Employment Opportunity Commission consolidated the complaints because they contained allegations of discrimination which related to the same matter. One final action was issued, and each Complainant appealed independently. Because the appeals involve allegations relating to the same matter, the Commission consolidates the appeals pursuant to 29 C.F.R. � 1614.606 The Commission deems the appeals timely and accepts them pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainants were employed as GS-13 Revenue Agents in New York. They all were applicants for a GS-14 Senior Team Coordinator position advertised under Vacancy Announcement No. 60-65-LMB70700.
Each Complainant filed an EEO complaint alleging that the Agency discriminated against them on various bases. At the conclusion of the investigation, the Agency provided Complainants with copies of the report of investigations and notice of their right to request a hearing before an EEOC Administrative Judge (AJ). Complainants timely requested a hearing. The AJ consolidated the complaints, and held a hearing on October 20, 21, 27 and 28, 2010. The AJ issued a decision on March 17, 2011 finding no discrimination.
Complainant Seinfeld alleged he was subjected to discrimination on the bases of his age (3/1947). Specifically Complainant Seinfeld alleged that the Selecting Official was aware he would retire in the coming year, and she also questioned his union representative why she should select him if he was going to retire in the coming year. The AJ found Complainant Seinfeld established a prima facie case of age discrimination because the selectee was eight years younger than he was, and as such, this evidence supported an inference of discrimination. The AJ found however, that the selectee was chosen for the position because he had five years of GS-14 experience, and was a leader in the agency's CAP program. The AJ found that any selection process irregularities and statements about Complainant Seinfeld's retirement were not evidence of age discrimination, and that he failed to prove, more likely than not, that he was not selected for the position due to age discrimination.
Complainant Rich alleged that she was discriminated against on the bases of sex (female) and reprisal for prior EEO activity. Complainant Rich alleged that she has been passed over in favor of other males for prior promotional opportunities. She alleged that the selecting official was aware of her prior EEO activity, and that she was not selected for the position because of her prior EEO activity. The Selecting Official testified that she was aware that Complainant Rich believed she was "next in line" for a promotion, but was advised by Labor Relations that this was not the relevant criteria for selection. The AJ found that Complainant failed to establish that her qualifications rendered her "plainly superior". Furthermore, the AJ found that the preponderance of the evidence revealed that the Selecting Official chose the selectee due to his GS-14 and other Revenue Agent experience.
Complainant Lechner alleged she was discriminated against on the bases of sex (female), age (9/1948) and disability (Raynaud's phenomenon). The Selecting Official denied knowledge of a disability, and testified that she only considered legitimate selection criteria. The AJ found Complainant failed to establish her qualifications rendered her "plainly superior" to the selectee. The AJ also found that even if Complainant suffered from a disability, which the Selecting Official was aware of, Complainant failed to prove that knowledge of the disability had anything to do with her nonselection. Complainant Lechner also alleged a claim of disparate impact. However, the AJ found insufficient evidence to support her claim.
Finally, Complainant Israel alleged discrimination on the basis of his age (5/1953). The AJ found Complainant Israel failed to establish a prima facie case of discrimination because he was only two years older than the selectee, and thus, the evidence that he was bypassed in favor of the selectee was not enough to support an inference of age discrimination. Complainant Israel also alleged that the Selecting Official questioned why she should select him if he was ready to retire. The AJ found that even if the Selecting Official made these statements, this was not evidence of age discrimination.
The Agency subsequently issued a final order adopting the AJ's finding that Complainants failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Each Complainant submitted individual briefs on appeal. They all argued that the irregularities which occurred during the selection process were evidence of pretext, and that they were each more qualified for the position than the selectee. Complainant Lechner argued that the AJ improperly excluded testimony based on the attorney-client privilege, and Complainant Rich argued that the AJ erred in not drawing an adverse influence against the agency when it failed to call a Personnel Specialist to respond to the irregularities that occurred during the selection. Complainants Israel and Seinfeld alleged that the statements relating to retirement are evidence of age discrimination. Complainant Rich maintained that she has been repeatedly passed over for promotion, and that the Selecting Official was aware that she had engaged in prior EEO activity and had an EEO settlement agreement because she had heard it around the office.
In response, the agency argued that the applicants were all well qualified for the position, but that management has the right to choose amongst qualified individuals. The agency maintains that the AJ made credibility findings supporting the Selecting Officials testimony, and Complainants failed to show that those determinations were clearly erroneous.
ANALYSIS AND FINDINGS
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.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
After a review of the entire record, we find the AJ's decision is supported by substantial evidence in the record. Much attention was made at the hearing regarding the disappearance of the first selection package, and the subsequent removal of points for awards. The AJ assigned to the case was present at the four day hearing and found the Selecting Official credible in her testimony, and we find no clear reason to disturb this ruling. As for the statements made in regards to Complainant's Israel and Seinfeld's retirement, we find no reason to disturb the AJ's finding that they were not indicative of age bias. Multiple factors, such as age, creditable years of service, and other special requirements determine eligibility for Federal retirement. Burns v. Dep't of the Treasury, EEOC Appeal No. 0120102543 (October 19, 2010) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993), and noting that "[b]ecause age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily 'age based."') See also Riddle v. Dep't of the Air Force, EEOC Request No. 05931012 (July 7, 1994).
Although the Complainants could establish pretext using various kinds of evidence, there is substantial evidence in the record to support the AJ's finding that they each failed to prove they were "plainly superior" to the selectee. An employer has discretion to choose among equally qualified candidates, so long as the selection is not based on unlawful criteria. In the absence of such evidence, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, at 259 (1981). Here, the weight of the evidence revealed that that Selecting Official chose the selectee because she believed he was better qualified for the position. Complainants' qualifications are not such that they undermine the Agency's explanation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the agency's final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (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
10/19/11
Date
5
01-2011-2765
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013