01972864
12-15-1998
Ann Russell, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Ann Russell v. Department of the Treasury
01972864
December 15, 1998
Ann Russell, )
Appellant, )
) Appeal No. 01972864
v. ) Agency No. 95-1348
) Hearing No. 110-96-8328X
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
(Internal Revenue Service), )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning her
allegation that the agency violated Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq.; and the Age Discrimination in
Employment Act (ADEA), as amended, 29 U.S.C. �621 et seq. The Commission
hereby accepts the appeal in accordance with EEOC Order No. 960, as
amended.
The issue presented is whether appellant proved, by a preponderance of
the evidence, that she was discriminated against on the bases of race
(Caucasian) and age (52) when on June 8, 1995, appellant became aware
that she had not been selected for the position of Exempt Organization
Reviewer (EOR), GS-0512-12. Neither side made any contentions on appeal.
At the time of her complaint, appellant had been employed as an Exempt
Organization Specialist (EOS), GS-0512-11. Believing that she was a
victim of discrimination, appellant sought EEO counseling and later
filed a formal EEO complaint dated September 5, 1995.
The agency complied with all procedural and regulatory prerequisites,
and on November 19, 1996, the EEOC Administrative Judge (AJ) issued a
Recommended Decision (RD) finding no discrimination based on race or age.
Subsequently, the agency adopted the RD as its own final decision.
After a careful review of the record in its entirety, the Commission
finds that the AJ's RD summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We therefore discern no
basis to disturb the AJ's finding of no discrimination.
We note in particular that the AJ found that the selecting official
(SO) made her choice based on which candidate had the most relevant
experience for the EOR position. The SO determined that because
the EOR performed predominately examination work, the selectee (ST)
had the most relevant experience. Appellant, on the other hand,
had no examination experience but rather had experience in exempt
organization determinations. Consequently, she would have had to undergo
additional training to become qualified for the position. In contrast,
the ST already had the necessary training for the position and had been
serving a detail to the position at the GS-11 grade level. The AJ found
it significant that the ST could perform the duties at once without
spending time getting additional training first, since the position
assignment was limited to 18 months to three years.
While appellant contended that that the agency pre-selected the ST,
we concur with the AJ that the record does not contain evidence of
such pre-selection. In any case, even if pre-selection had occurred, it
does not violate Title VII when, as here, the selection is based on the
qualifications of the ST and not on a discriminatory factor. See, e.g.,
Goosetree v. State of Tennessee, 796 F.2d 854, 861 (6th Cir. 1986).
It is accordingly the decision of the EEOC to AFFIRM the agency's final
decision in this matter.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Dec 15, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations