01984948
06-28-2001
George J. Camberis, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
George J. Camberis v. Department of the Treasury
01984948
June 28, 2001
.
George J. Camberis,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 01984948
Agency No. 95-3002R
Hearing No. 210-97-6420X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD), concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination, alleging violations 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. Complainant alleges he was discriminated
against on the bases of race (Caucasian), sex (male), and age (over 40,
born January 26, 1943) when: (1) he was not selected for the position of
Appeals Officer, GS-930-14; and (2) he was not selected for the position
of Appeals Regional Technical Advisor, GM-930-14.<1> For the following
reasons, the Commission affirms the agency's FAD.
BACKGROUND
The record reveals that complainant was employed as an Internal Revenue
Agent, GS-512-13, with the Internal Revenue Service, Examination Division,
Chicago, Illinois. Complainant filed a formal EEO complaint with the
agency on October 4, 1994, alleging that the agency had discriminated
against him as referenced above.
At the conclusion of the investigation, complainant was provided 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.
Complainant had been a GS-13 since December 1973, serving in the Exempt
Organizations part of the Examination Division. He also served as an
Instructor, was selected as an Examination Civil Fraud Coordinator with
primary responsibility for writing the Fraud Awareness Handbook for
revenue agents, and prepared district office reports, which were sent to
the regional office. Complainant received a high-quality step increase
for his fraud efforts and had served as a group manager for 3 years in
the Examination Division. Complainant was also an information-gathering
project group manager for 18 months. Complainant additionally served
as a coordinator responsible for imparting technical and auditing skills
to other agents.
Appeals Officer Position
Complainant applied for the position of Appeals Officer, GS-930-14,
Appeals Office, Chicago. The duties included: (1) performing analysis
and conducting conferences for settlement of tax cases; (2) analyzing
case files relative to tax liability; (3) conducting legal research;
(4) conducting conferences and negotiations with taxpayers or their
representatives; (5) conferring with Regional Counsel Attorneys on
settlement or trial of docketed cases; and (6) performing other related
duties as assigned. Complainant was not selected for the vacant position
on November 4, 1988.
Complainant was placed on the list of six best qualified (BQ) and
was interviewed. There were three Appeals Officer positions open
for selection. The selectees were Selectee A (male, African-American,
under 40), Selectee B (female, Caucasian, under 40), and Selectee C (male,
Caucasian, under 40). On the BQ list, but not selected, were Employee A
(female, African-American, under 40) and Employee B (male, Caucasian,
age unknown), and complainant.
The Ranking Official (RO)(male) was Associate Chief, Appeals Office,
Milwaukee, Wisconsin. The RO lowered the management potential scores of
all six applicants who ultimately made the BQ list, except Selectee C,
whose score was raised. In determining the final overall numerical totals
used in the ranking of the BQ list, the original manager's evaluation
was weighted 60 percent and the RO's rating was weighted 40 percent.
The Selecting Official (SO) (male, Caucasian, over 40), Chief, Appeals
Office, Chicago, reviewed the BQ list. Selectee A had served in the
Examination Division as a team coordinator on a large case and had
completed the Revenue Agency Report for another large case when the
team coordinator had become ill. Selectee B had been a GS-13 Appeals
Officer since February 1987 in the Chicago Appeals Office. Before that,
she served for three years as a team member in a large case group
in the Examination Division. She had exclusive responsibility for
one corporation, and served as a routine team member on major large
case segments. For a very short period of time, she served as team
coordinator on a large case until moved to the Appeals Office. Before
working in the large case group, she served in a general program group
in the Examination Division for approximately three years. Selectee C
had both appeals and large case experience in the Appeals Office.
The AJ found that complainant established a prima facie case with respect
to all of the alleged grounds. The AJ further noted that the agency
articulated legitimate, non-discriminatory reasons for its decision
not to select complainant, i.e., that the SO's selection decisions were
based on his preference for the selected candidates, who had appeals and
large case experience. Complainant, however, argued that the agency's
justification was pretextual. The AJ found complainant failed to present
substantive, probative evidence of pretext.
In its FAD, the agency adopted the AJ's findings and conclusions. In the
agency's view, the AJ correctly set out the material and relevant issues
and facts of the complaint, applied the proper standards of analysis to
the complaint and reached appropriate conclusions.
On appeal, complainant substantially reiterates his arguments made before
the AJ. In response, the agency substantially reiterate its arguments
made before the AJ.
Appeals Regional Technical Advisor Position
Complainant applied for the position of GM-930-14, Appeals Regional
Technical Advisor(ARTA), Midwest Regional Office, Chicago. The duties
included: (1) serving as staff and technical assistant in the Office
of the Regional Director of Appeals and Assistant Regional Director
of Appeals in planning, managing, directing, and evaluating the overall
appeals activity in the region; (2) assisting in interpreting policies and
directives of the agency, especially those of a highly technical nature
involving application of substantive or decisional tax law, regulations,
or rulings; (3) reviewing complaints and dissents on GS-14 cases and
below; (4) appraising the degree of uniformity of determinations and
technical interpretations and the degree of conformance with program
objectives; and (5) appraising the quality of work performance of
individual appeals officers. Complainant was not selected for the vacant
position on April 14, 1992.
The application materials were provided to an appeals screening
panel composed of Panel Member 1 (male, Caucasian, born July 12,
1952), Associate Chief Appeals, Panel Member 2 (SO involving Appeals
Officer position), and Panel Member 3 (male, Caucasian, over 40),
Assistant Regional Director of Appeals. Panel Member 1 ranked the
candidates and reduced the management potential ratings of all of the
Examination Division applicants, including complainant, Employee 1
(female, African-American, over 40), and Employee 2 (white, male,
over 40) in three categories, work accomplishments, decisiveness, and
analytical ability. Appeals Division applicants' management potential
ratings were unchanged in all categories.
The ranking was agreed to by Panel Members 2 and 3. The resulting ARTA
BQ list included Employee 3 (female, Caucasian, over 40), Employee 4
(male, Caucasian, over 40), and Employee 5 (female, Asian, under 40).
All three of these employees were already in Appeals Division positions.
Complainant's name was not placed on the BQ list for the ARTA.
Panel Member 3 was also the Selecting Official. Employee 3 was the
highest-rated candidate and either withdrew or declined the position.
The Selecting Official made his selection from the list of the two
remaining candidates, Employee 4 and 5. Employee 5 (Selectee) was
selected. The Selectee had performed as a GS-12 Appeals Officer in the
Kansas City, MO, Appeals Office (September 1987 to January 1990) and
later as a GS-13 in the Appeals Office in Chicago (from January 1990 to
her selection).
The AJ found that complainant established a prima facie case on all
grounds alleged. The AJ then concluded that the agency articulated
legitimate, nondiscriminatory reasons for its action, i.e., the
desirability of appeals experience for the ARTA position and the
Selectee's qualifications. The AJ found that complainant failed to
show by a preponderance of the evidence that the agency's explanations
were pretext.
In its FAD, the agency adopted the AJ's findings and conclusions.<2> In
the agency's view, the AJ correctly set out the material and relevant
issues and facts of the complaint, applied the proper standards of
analysis to the complaint and reached appropriate conclusions.
On appeal, complainant substantially reiterates his arguments made before
the AJ. In response, the agency substantially reiterates its arguments
made before the AJ.
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). The Commission also notes that the credibility
determinations of the AJ are entitled to deference due to the AJ's
first-hand knowledge, through personal observations, of the demeanor
and conduct of the witnesses at the hearing. Esquer v. United States
Postal Service, EEOC Request No. 05960096 (September 6, 1996); Willis
v. Department of the Treasury, EEOC Request No. 05900589 (July 26, 1990).
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973); 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). A complainant must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited reason was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Next, the agency must articulate a legitimate,
nondiscriminatory reason for its action(s). Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has offered
the reason for its action, the burden returns to the complainant to
demonstrate, by a preponderance of the evidence, that the agency's reason
was pretextual, that is, it was not the true reason or the action was
influenced by legally impermissible criteria. Burdine, 450 U.S. at 253;
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Complainant may establish a prima facie case of discrimination in the
nonselection context by showing that: (1) he is a member of a protected
class; (2) he was qualified for the position; (3) he was not selected
for the position; and (4) he was accorded treatment different from that
given to persons otherwise similarly situated who are not members of
her protected group. Williams v. Department of Education, EEOC Request
No. 05970561 (August 6, 1998). Complainant may also set forth evidence of
acts from which, if otherwise unexplained, an inference of discrimination
can be drawn. Furnco, 438 U.S. at 576.
The AJ found that complainant established a prima facie case of
discrimination on all grounds alleged with respect to the Appeals
Officer, GS-930-14 position and the Appeals Regional Technical Advisor,
GM-930-14 position. Where the agency has articulated a legitimate,
nondiscriminatory reason for the personnel action at issue, the factual
inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-14 (1983); Hernandez v. Department of Transportation,
EEOC Request No. 05900159 (June 28, 1990).
Appeals Officer Position
The agency articulated legitimate, nondiscriminatory reasons for
its failure to select complainant to the position of Appeals Officer,
GS-930-14, i.e., preference for candidates who had appeals and large
case experience and the selectees' qualifications. Complainant therefore
has the burden of demonstrating that the agency's reasons were pretextual.
The Commission notes that in nonselection cases, pretext may be found
where the complainant's qualifications are demonstrably superior
to the selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). However, an employer has the discretion to choose among
equally qualified candidates. Canham v. Oberlin College, 666 F.2d 1057,
1061 (6th Cir. 1981). Nevertheless, an employer has greater discretion
when filling management level or specialized positions. Wrenn v. Gould,
808 F.2d 493, 502 (6th Cir. 1987). Moreover, an employer has the
discretion to determine how best to manage its operations and may
make decisions on any basis except a basis that is unlawful under the
discrimination statutes. Furnco Construction Co. v. Waters, supra; Nix
v. WLCY Radio/Rayhall Communications, 738 F.2d 1181 (11th Cir. 1984).
Finally, an employer is entitled to make its own business judgments.
The reasonableness of the employer's decision may of course be probative
of whether it is pretext. However, the trier of fact must understand
that the focus is to be on the employer's motivation, not its business
judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979).
Complainant argued that the agency's justification was pretextual. The SO
indicated that his selection decisions were based on his first preference
for GS-13 Appeals Officers with large case experience. The SO's second
preference was for GS-13 Examination Agents with large case experience,
followed by GS-13 Appeals Officers, and then GS-13 Revenue Agents. The SO
further stated that all three selectees had large case experience prior
to their selection. Selectee A had served as a large case coordinator in
the Examination Division. Selectees B and C had served in the Appeals
Division.
Complainant has essentially questioned the SO's credibility. The AJ
found, however, that the SO testified credibly. We therefore note that
the credibility determinations of the AJ are entitled to deference due
to the judge's first-hand knowledge through personal observation of the
demeanor and conduct of the witness at the hearing, and the Commission
will generally not disturb the credibility determination of an AJ.
Esquer v. United States Postal Service, EEOC Request No. 05960096
(September 6, 1996).
Selectee A's large case experience was uncontested, although complainant
argues on appeal that the experience was largely as a team member and
not a team leader. See AJ Decision at 426. Significantly, the AJ found
that Selectee A served in the Examination Division as team coordinator
on a large case and completed the Revenue Agency Report for another
large case when the team coordinator became ill. AJ Decision at 416,
citing I.F. 954; Tr. 221-22, 266-67, etc. Complainant questions whether
Selectee B did complicated matters in her work in the Appeals Office.
The AJ, however, found that Selectee B testified credibly that she did
GS-13 work in Appeals and also spent up to 25 percent of her time on GS-14
cases for developmental purposes. AJ Decision at 424, citing Tr. 331-41.
The AJ further found that Selectee B worked on large case matters
under an Associate Chief and also under Team Chiefs. Id. See also AJ
Decision at 416 (Selectee B served for 3 years as a team member in a
large case group in the Examination Division from 1984-1987, served as
a routine team member on major large case segments, and served as team
coordinator on a large case until she moved to the Appeals Office).
The SO's testimony that Selectee C was also already working large cases
in Appeals is uncontroverted. AJ Decision at 416, citing I.F. 501;
Tr. 233; AJ Decision at 426.
Complainant argues that he had large case experience as a team leader
for approximately one year in 1982. The AJ, however, concluded to the
contrary, finding that complainant had not served as a team coordinator
of a large case and had no managerial experience in a large case.
AJ Decision at 413, citing Tr. 369-70. Complainant also indicates that he
had other large case experience and years of �mini-large� case experience,
but does not give more specific information, especially with respect to
the time. Complainant's Brief on Appeal at 39.
Significantly, the AJ found that at the time of the selection complainant,
in contrast to the selectees, had little contact with Appeals, and
had little or no recent large case experience. AJ Decision at 426.
The AJ additionally found that there was no evidence whatsoever that
the SO's ratings were influenced by the RO's scoring of the Appeals
Office candidates. AJ Decision at 427.
The further found that the SO's use of Appeals experience and large
case experience as selection factors was not shown by complainant to
be irrational or arbitrary, nor unduly subjective. AJ Decision at 427.
Complainant has failed to show that his qualifications are demonstrably
superior to the selectees.
In sum, the AJ found complainant failed to present preponderant evidence
of pretext. AJ Decision at 427. On review, we conclude that substantial
evidence supports the AJ's finding.
Appeals Regional Technical Advisor Position
The agency articulated legitimate, nondiscriminatory reasons for its
action, i.e., the desirability of appeals experience for the ARTA position
and the selectee's qualifications. Complainant therefore has the burden
of demonstrating that the agency's reasons were pretextual.
The AJ found that the RO testified credibly and without substantive
contradiction as to the usefulness and desirability of appeals experience
for the ARTA position. AJ Decision at 429. The RO stated that the
Appeals Office has its own programs, its own structure, its own way
of doing business, and is completely and distinctly different from
the Examination Division. Tr. 304-05. See also AJ Decision at 431.
The RO further indicated that an Examination Division candidate
would not know about specific Appeals Office programs. Id. at 431.
The SO stated he was looking for an Appeals person for the position, a
person who knew the Appeals policies. Tr. 143-44; AJ Decision at 432.
During the SO's tenure as Appeals Regional Director, all of the ARTAs
had prior Appeals Office experience. Tr. 143-44; AJ Decision at 433.
The SO additionally stated that for the ARTA position he was seeking a
distinct appeals-based perspective. Tr. 160; AJ Decision at 433.
The RO concluded that since the Selectee had performed as a GS-12
Appeals Officer in the Kansas City, MO, Appeals Office (September 1987
to January 1990) and later as a GS-13 Appeals Office in Chicago (from
January 1990 to her selection), she would have familiarity with the
work required for the ARTA position. Tr. 433; AJ Decision at 433. The
Selectee's GS-930-13 Performance Appraisal for the period January 28,
1990, through January 27, 1991, gave the selectee ratings of 4 [exceeds
fully successful] in four critical elements and 5 [outstanding] in one
critical element and one non-critical element. Selectee also served
as an Internal Revenue Agent, Examination Division, from 1983 to 1987,
as a GS-512-11, in Dallas, Texas, and Wichita, Kansas. In addition,
the Selectee served in a number of acting Associate Chief details, the
longest lasting seven weeks from January to February 1991. I.F. at 877.
The SO stated that he did not select complainant because the BQ listed
candidates had Appeals related experience and complainant did not.
The SO indicated he did not want somebody who had never been in the
Appeals Office. Tr. 160-65, 175-76; AJ Decision at 433-34. Complainant
had been a GS-13 Internal Revenue Agent since December 1973, serving in
the Examination Division. There is no indication that complainant had
any Appeals Office experience. On our review of the record, complainant
has failed to show that his qualifications are demonstrably superior to
the Selectee's.
Nevertheless, in arguing pretext, complainant submits that alterations by
the RO of his Examination Division management potential score resulted
in his score being below the cutoff for the BQ list. The RO states
that he did not accept all management potential evaluation ratings
�as is� because of the lack of Appeals experience of the Examination
Division candidates. The RO stated that he felt that applicants who
lacked Appeals experience would not be able to �hit the ground running
and go along and be productive immediately.� Tr. 280-92. In lowering
the Examination Division candidates' scores, including complainant's,
the RO stated that he viewed three areas, which would be impacted
most if one lacked Appeals experience: Category 1, work accomplishment;
Category 3, decisiveness, and Category 4, analytical ability. Tr. 313-17.
In reassessing the management potential ratings of Examination Division
candidates, the RO posed the question whether the individual would
actually begin performing at that level when first entering the ARTA
position and the rating level at which the applicant would be expected
to perform in the three critical categories upon beginning the ARTA job.
The RO determined that the Examination candidates would not be performing
at a level above 3, �good potential� (rather than level 5 �outstanding
potential� or 4 �very good potential). Tr. 277-80. The RO lowered all
Examination applicants' ratings to level 3 in each of those 3 categories.
The AJ found it significant, and we concur, that all Examination
candidates scores were lowered to ratings of 3. AJ Decision at 439.
Thus, the changes affected all Examination applicants, regardless of race,
sex, or age. Id.
As further proof of discriminatory motive, complainant argues that, in
changing the scores, the the agency failed to properly follow mandated
agency procedures (Internal Revenue Manual (IRM)). Complainant argues
that the Appeals Office was required to accept the scores from the
Examination Division under IRM Section 8-A. Complainant argues that a
change in the ratings constituted a �re-ranking� under the IRM, and that
thus, section 8-B was applicable, and therefore, a new posting and/or
panel was required. The AJ noted that an agency Personnel Assistant
testified credibly that IRM Section 8-A (and 8-B) did not apply to this
case, and in any case that IRM Section 8-A was a permissive provision.
Tr. 29; I.F. 729-30; AJ Decision at 437. The AJ further noted that
the Personnel Assistant testified that it was not impermissible for the
Appeals Division to raise or lower scores issued by the Chicago District,
because the Appeals Division was the selecting authority. Tr. 29;
I.F. 729-30; AJ Decision at 437. The AJ noted that the Personnel
Assistant's testimony was uncontroverted. AJ Decision at 437.<3>
There is evidence that the SO should not have served both on the panel
and as SO. Nevertheless, while an agency's failure to adhere to its own
regulations or guidelines may be considered probative on the question of
pretext, it is not dispositive for purposes of showing discrimination.
See AJ Decision at 439.
As previously indicated, the SO's first choice declined or withdrew
her candidacy. The AJ found that the SO credibly explained his choice
between the Selectee and Employee 4, i.e., his concerns about the
timeliness of Employee 4�s work. AJ Decision at 440. The AJ found that
complainant failed to show by a preponderance of the evidence that the
agency's explanations were a pretext for sex, race, and/or age bias,
or a combination thereof in the ARTA selection. AJ Decision at 441.
In further arguing pretext, complainant argues that the Selectee was
selected in connection with the Midwest Appeals Multi-Year Affirmative
Employee Plan. The RO denied that sex, race, or age were factors
in the selection. The agency emphasizes that the Affirmative Action
Plan for fiscal year 1991-92 did not deal with Asian-Pacific employee
representation in the Appeals Office. I.F. Exhibit 11 at 304-05; 322-24.
Complainant finally argues that the Selectee while in the Appeals
Office, as a GS-13, had office audit and simple Revenue Agent cases,
not GS-13 work. However, the Selectee indicated that usually GS-13
Appeals Officers ended up with Office Audit cases or some simple Revenue
Agent cases, but that they also waited for complex issues and sometimes
they didn't get them as often as desired. Complainant also argued that
complainant needed coaching once in the ARTA position, but the AJ found
that the SO testified credibly and without substantive contradiction
that the Selectee did not require heavy supervision, although she need
coaching regarding procedure in the Regional Office. AJ Decision at 435.
In sum, the AJ found complainant failed to prove discrimination motivated
his non-selection. AJ Decision at 441. On review, we conclude that
substantial evidence supports the AJ's finding.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and 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 FAD dated April 22, 1998.
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
June 28, 2001
Date
1 Complainant's also had a third allegation, that he was not selected
for a position as a Supervisory Internal Revenue Agent, GM-512-14,
which was withdrawn.
2 The FAD inadvertently omitted specific reference to the ARTA position.
3 On appeal, complainant renews its objection to an affidavit proffered
by the agency (Agency Exhibit 5) at the hearing involving this question.
Although the AJ did not reject the affidavit, the AJ did not rely on the
affidavit in his disposition of the question. AJ Decision at 437-38.
Accordingly, the AJ's decision not to reject the affidavit was, at most,
harmless error.