Moshe Immerman, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionOct 15, 2003
01A34267 (E.E.O.C. Oct. 15, 2003)

01A34267

10-15-2003

Moshe Immerman, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.


Moshe Immerman v. Department of Agriculture

01A34267

10-15-03

.

Moshe Immerman,

Complainant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A34267

Agency No. USDACR980276

Hearing No. 380-99-8032X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's

appeal from the agency's final order in the above-entitled matter.

Complainant alleged that the agency had discriminated against him on

the bases of sex (male), religion (Jewish), age (DOB: 11/21/53) when, on

August 1, 1997, he was terminated from a GS-7, Biologist position at the

Williamette Forest.<1> EEOC Regulation 29 C.F.R. � 1614.405(a) provides

that all post-hearing factual findings by an Administrative Judge 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). After a review of the record in its entirety,

including consideration of all statements submitted on appeal, it is the

decision of the Equal Employment Opportunity Commission to affirm the

final agency order because the Administrative Judge's ultimate finding,

that unlawful employment discrimination was not proven by a preponderance

of the evidence, is supported by the record.

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

___10-15-03_______________

Date

1The Administrative Judge noted that there was a dispute between the

parties as to the exact characterization of the issue. The agency

argued that complainant was not terminated because he was not an

employee of the agency due to the fact that his offer of employment

was rescinded. Consequently, the Administrative Judge stated the issue

in the alternative, i.e., whether the agency discriminated against the

complainant on the three bases alleged by terminating him from a position

on August 1st in 1997, or whether the agency so discriminated against

the complainant on these bases by rescinding an offer of employment

before the complainant became an employee on August 1st, 1997.