01A14362
05-06-2003
Donald L. Blair, Complainant, v. John W. Snow, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Donald L. Blair v. Department of the Treasury
01A14362
May 6, 2003
.
Donald L. Blair,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 01A14362
Agency No. TD 99-3065
Hearing No. 210-A0-6389X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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., and
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. For the following reasons, the Commission affirms the agency's
final order.
The record reveals that complainant, a Revenue Agent, GS-12 at the
agency's Peoria, Illinois facility, filed a formal EEO complaint on
November 16, 1999, alleging that the agency had discriminated against
him on the bases of race (Caucasian), sex (male), age (D.O.B. April 18,
1948), and reprisal for prior EEO activity when:
(1) on or about June 17, 1998, he was not selected for the position
of Internal Revenue Agent (IRA), GS-512-13, under Vacancy Announcement
number NPB 9A-410JJ;
from January 1997 to the present he was not assigned or detailed as
acting supervisor in the place of his supervisor;
on or about August 19, 1999, and again on September 13, 1999, he was not
selected for the position of IRA, GS-12/13, under Vacancy Announcement
number 99 287 CC; and
he was denied the position of Revenue Agency CEP Team Member, GS-13,
when the post of duty (POD) for the sole Peoria, Illinois, position was
changed to Bloomington, Illinois on or about March 1997 and ultimately
filled under vacancy announcement number NPB 97-111ML on August 26, 1997.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant established a prima facie case of
sex, race, age, and reprisal discrimination as to his non-selection for
the IRA positions. The AJ also concluded that the agency articulated
legitimate, nondiscriminatory reasons for not selecting complainant for
the positions. Specifically, the AJ found that the selecting official
for the two positions relied upon the candidate rankings provided by
personnel, based in part on performance evaluations, and that complainant
was not among the highest ranked candidates for either of the positions.
(Hearing Transcript, pages 197-202; 206-209). The AJ further found that
the record did not support complainant's contention that there was an
affirmative action plan in place which influenced the rankings of the
candidates for the two positions.
As to complainant not being assigned as an acting supervisor, the AJ found
that complainant established a prima facie case on all bases, but that the
agency articulated a legitimate nondiscriminatory reason for its actions.
The AJ found that complainant and his supervisor (S1) had a poor working
relationship in that complainant refused to speak directly to S1 and did
not participate in group meetings. (HT, page 293). The AJ found that
S1 stated she did not assign complainant as an acting supervisor for the
first few years they worked together because she felt complainant was
�not cooperating with [her]� and that she could not trust complainant to
�make the decisions [she] would make in the same situation...[or] have
the best interests of the group at heart.� (HT, page 296). Finally, as
to the POD for the Revenue Agency position being changed, the AJ found
that assuming complainant established a prima facie case, the agency
articulated a legitimate, nondiscriminatory reason for its action.
Specifically, the AJ found that the POD for the position was changed
to bring the vacancy announcement in line with updated agency procedure
which was to post the position for the POD where the cases to be worked
were located. The AJ concluded that complainant failed to show that
any of the agency's legitimate, nondiscriminatory reasons were pretextual.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends that the AJ erred in finding no discrimination,
and calls into question a number of the AJ's credibility determinations.
Complainant also reiterates his contention that an agency affirmative
action plan was a significant factor in the non-selections at issue.
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.
As to complainant's non-selection for the positions at issue, because
the agency articulates legitimate nondiscriminatory reasons for not
selecting complainant, it is complainant's burden to demonstrate by a
preponderance of the evidence that the agency's non-selections were based
on prohibited considerations of discrimination, that is, its articulated
reasons for its actions were not its true reasons but a sham or pretext
for discrimination. Texas Department Of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S 502
(1993). In a non-selection case, pretext may be demonstrated by a showing
that complainant's qualifications are observably superior to those of
the selectee. Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981);
Williams v. Department of Education, EEOC Request No. 05970561 (August
6, 1998). Having considered the evidence of record, we find that
complainant has not established pretext. Specifically, we note that
complainant has not offered any evidence that his qualifications for
the positions were "observably superior" to those of the selectees.
We note that complainant also failed to proffer any persuasive evidence
to show that an agency affirmative action plan, if in existence, played
any role in his non-selection.
While complainant has presented several challenges to the agency's
reasons for its alleged discriminatory actions, he has presented
insufficient evidence to establish, by a preponderance of the evidence,
that the agency's reasons were pretextual. Accordingly, we find that
complainant has failed to carry his burden of proving that the agency
unlawfully discriminated against him on account of his age, race, sex,
or in reprisal for prior protected activity. Further, after a careful
review of the record, the Commission finds that the AJ's findings of fact
are supported by substantial evidence in the record and that the AJ's
decision referenced the appropriate regulations, policies, and laws.
We discern no basis to disturb the AJ's decision. 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 order.
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
May 6, 2003
__________________
Date