George J. Camberis, Complainant,v.Paul H. O'Neill, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionJun 28, 2001
01984948 (E.E.O.C. Jun. 28, 2001)

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.