05990355
07-06-2001
Ann Russell, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Ann Russell v. Department of the Treasury (Internal Revenue Service)
05990355
July 6, 2001
.
Ann Russell,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Request No. 05990355
Appeal No. 01972864
Agency No. 01972864
Hearing No. 110-96-8328X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Ann Russell
v. Department of the Treasury (Internal Revenue Service), EEOC Appeal
No. 01972864 (December 15, 1998). EEOC Regulations provide that the
Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
In her underlying complaint, complainant alleged that she was
discriminated against on the bases of race (Caucasian) and age (52)
when on June 8, 1995, she became aware that she had not been selected
for the position of Exempt Organization Reviewer (EOR), GS-0512-12.
In her request, complainant submits as evidence that the agency erected
barriers to the promotion of White males and females, a Memorandum Ruling
of the United States District Court for the Western District of Louisiana,
in the matter of Byrd et al v. Ruben, Civil Action No. 95-1280 (April 9,
1997). The Court ruled that an agency publication entitled, A Design for
Organizational Diversity of Strategic Initiative ERR-16, Minorities and
Women Within the IRS, put into effect an affirmative action/diversity
program which expressly authorizes and rewards preferences based on
race and gender in the promotion selection process, with the ultimate
goal of diversifying the agency workforce. The Court then held that
the agency failed to show a compelling state interest in remedying the
present effects of past discrimination sufficient to maintain the use
of race or sex
to justify the objectives of the program.
In its brief in opposition to complainant's request, the agency points
out that the Administrative Judge (AJ) found that it did not utilize
the above program in making the selection at issue. Rather, the AJ
concluded that the agency chose the selectee, a Black female, based on
the selectee's superior work background and not on her race.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01972864 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
July 6, 2001
Date