0120102543
10-19-2010
Mary K. Burns, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Mary K. Burns,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120102543
Agency No. IRS-09-0569-F
DECISION
Complainant filed an appeal from the Agency's May 5, 2010 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue is whether the Agency discriminated against Complainant because of her age (53) when, on March 6, 2009, it failed to select her for a promotion to the position of Internal Revenue Agent, Account Coordinator, GS-0512-14.
BACKGROUND
During the relevant period, Complainant worked as an Internal Revenue Agent at a Las Vegas, Nevada facility of the Agency.1 Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of age (53 at time of non-selection) when, on March 6, 2009, it failed to select her for a GS-14 Internal Revenue Agent, Account Coordinator (not-to-exceed one year) position. Complainant stated that the Agency denied her the position because she would be eligible for retirement in March 2010. Complainant stated, when asked about her retirement plans, she responded "if selected, [she] would not retire before the filing of the third return associated with the position and the conclusion of all associated duties, which would be more likely than not at year end 2012." Complainant stated that a Team Manager (S1), who was on the interview panel, sent her an email indicating her "approaching retirement" was the reason for her non-selection.
The Agency conducted an investigation of Complainant's claim. During the investigation, S1 stated that Complainant's interview responses showed that she was not the best qualified for the position, and that the selection was based on the opinions of the three-member interview panel given to the selecting official. S1 stated further that the selection was not based on age and she used "approaching retirement" as an excuse to ease conveying the non-selection to Complainant and to be encouraging. S1 acknowledged that "approaching retirement" was a "poor choice" of words and that she apologized when Complainant indicated she was offended by it.
The selecting official (S2) stated that he chose the selected candidate (C1), who was 50 at the time of selection, because the interview panel concluded that C1 "had the most knowledge about the program and the Account Coordinator position . . . [and] recent experience as a senior grade 14 team leader, with responsibilities coordinating large CIC teams." S2 stated, "These were skill sets that were desired for the position." S2 stated further, "I did not consider nor did I have knowledge of the Complainant[']s age or retirement plans at the time I made the selection." A second interview panel member (S3) stated that neither age nor retirement plans were discussed about any of the applicants, and that all three panel members unanimously chose the selectee as best qualified. The third interview panel member stated that C1 and Complainant's qualifications and experience were similar, but C1 exhibited a greater knowledge of the vacant position.
The investigative record contains an email, dated March 6, 2009, from Complainant in which she indicated that S1 asked her to apply for the Account Coordinator position. In an email also dated March 6, 2009 and in an attachment to an email dated April 30, 2009, S1 stated that she overheard Complainant talk about her retirement plans with the group secretary who sits right outside her office. In the April 30 email attachment, S1 stated that she overheard Complainant talk about retirement on several occasions, including the morning she had to draft the non-selection memo to Complainant.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation; and notice of her right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested the latter and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency stated that Complainant failed to establish discriminatory motives for the Agency action and it noted that age and retirement are not synonymous. The instant appeal from Complainant followed.
On appeal, Complainant stated that S1 inquired about her retirement plans before the interview and S1's email shows that the proximity of retirement age was a selection consideration; evidence shows that S1's tainted recommendation rather than a panel recommendation determined the selectee; the assertion that the selectee, C1, spoke more about the work program than Complainant is pretext for discrimination; Complainant spoke more to how she would execute the program during the interview, which was the established criteria; and there are so many contradictions in the record rendering it unworthy of belief. In opposition to Complainant's appeal, the Agency stated that "contemplating an applicant's retirement is neither direct nor indirect evidence of age-discrimination" and that the difference between Complainant's and C1's age is insufficient to support an inference of age discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Under the ADEA, it is "unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to h[er] compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. � 623(a)(1). The Commission determines that complainant has not established age discrimination. The Supreme Court has held that because the ADEA prohibits discrimination on the basis of age and not class membership, the fact that a similarly situated comparative is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than the fact the plaintiff was treated differently than someone outside her protected class. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002 (September 18, 1996). While there is no bright-line test for what constitutes "substantially younger," that term has generally been applied to age differences in excess of five years. See Hammersmith v. Social Security Administration, EEOC Appeal No. 01A05922 (March 6, 2002). The ultimate burden of persuading the trier of fact that the agency intentionally discriminated against complainant remains at all times with complainant. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (citation omitted).
In the instant matter, the record reflects that, during the relevant time, Complainant was 53 and the selectee was 50. Considering exact birthdates, Complainant is about three years older than the selectee. We find this age difference is insufficient to establish an inference of age discrimination. See Hickman v. Department of Justice (Drug Enforcement Administration), EEOC Appeal No. 01A11797 (December 20, 2001) (finding that a four year age difference between the complainant and the selectee is not sufficient to establish an inference of age discrimination).
More prominently, Complainant alleged that her proximity to retirement age prompted her non-selection and she provided an email from an interview panel member, S1, citing her approaching retirement as the reason for her non-selection. This alone is insufficient evidence to establish age discrimination. Multiple factors, such as age, creditable years of service, and other special requirements determine eligibility for Federal retirement. In Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993), the United States Supreme Court stated "[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). (citing to Hazen Paper). After careful consideration of the specific circumstances herein, we AFFIRM the final agency decision finding no discrimination.
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
___October 19, 2010_____
Date
1 We note that Complainant no longer works for the Agency.
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0120102543
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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