Clinton M. Fried, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionApr 26, 2000
01973225 (E.E.O.C. Apr. 26, 2000)

01973225

04-26-2000

Clinton M. Fried, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury (Internal Revenue Service), Agency.


Clinton M. Fried v. Department of the Treasury

01973225

April 26, 2000

Clinton M. Fried, )

Complainant, )

) Appeal No. 01973225

v. ) Agency No. 93-2306; 95-1035R; 95-1313

) Hearing No. 96-8285X; 96-8288X; 96-8301X

Lawrence H. Summers, )

Secretary, )

Department of the Treasury )

(Internal Revenue Service), )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from the agency's final decision

(FAD) concerning his equal employment opportunity (EEO) complaint of

unlawful employment discrimination in violation of 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 of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq. <1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. � 1614.405). Complainant

alleges that he was discriminated against on the bases of religion

(Jewish), sex (male), and age (DOB: July 26, 1951) and retaliated against

(prior EEO activity), for various reasons. The Commission AFFIRMS the

agency's finding of no discrimination and/or retaliation.

The record reveals that complainant, a Senior Attorney at the agency's

Regional Counsel's Office in Atlanta, Georgia, filed formal EEO complaints

with the agency on June 23, 1993, December 23, 1994 and July 31, 1995,

alleging that the agency discriminated against him as referenced above.

At the conclusion of the investigations, complainant received a copy

of the investigative reports and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ consolidated the complainants,

conducted a hearing and issued a recommended decision (RD) from the bench

on Friday, November 15, 1996. The agency's FAD adopted the AJ's

recommended decision with modifications.<2>

BACKGROUND

Complainant filed his first complaint alleging discrimination on the

basis of sex, age, religion and/or reprisal when he was non-selected

for the position of Trial Attorney (Tax). Complainant alleged that a

performance appraisal was used in the application process, without his

knowledge. Complainant contends that his non-selection for the Trial

Attorney position and the use of the performance appraisal resulted from

prohibited discrimination. Concerning the non-selection, the AJ concluded

that complainant established a prima facie case of discrimination as

to age, sex, and religion. However, the AJ found that complainant

did not make a prima facie case of reprisal, reasoning that he had not

participated in prior protected activity.

Three separate instances precipitated the filing of complainant's second

complaint. Complainant alleged harassment in retaliation for his prior

EEO contact when, on March 2, 1993 he was called into a meeting and

criticized about his attitude. On March 3, 1993, he was told that his

criticism of other attorneys would affect his promotion opportunities.

Finally, in April 1993 his supervisor failed to adjust his workload.

Concerning the March 2nd and 3rd incidents, the AJ concluded that

complainant established a prima facie case. The AJ found that complainant

failed to make a prima facie case of discrimination with respect to the

agency's failure to adjust his workload in April 1993. The AJ found that

complainant did establish a prima facie case with respect to a June 4,

1993 incident where he was required to carry a heavy workload.

Complainant filed his third complaint alleging discrimination on the basis

of sex, religion, and age and retaliation for prior EEO activity when he

was required to request permission to use the agency's EEO library for

personal use.<3> Concerning this claim, the AJ found that complainant

established a prima facie case of discrimination.

Complainant filed his fourth complaint alleging retaliation for prior

EEO activity when he was issued an oral admonishment, confirmed in

writing, after he allegedly made insulting and offensive comments to

his supervisor. Regarding complainant's admonishment, the AJ found that

complainant established a prima facie case of discrimination.

Where the complainant established a prima facie case, the AJ nevertheless

concluded that complainant failed to show, by a preponderance of

the evidence, that the agency's explanations were pretexts to hide

discrimination and/or retaliation.

CONTENTIONS ON APPEAL

The complainant makes many arguments on appeal. For the purposes of this

analysis, we divide these arguments into two broad categories. First,

complainant argues that he was denied due process in the administration of

the hearing. This category includes, inter alia, complainant's claims of

prejudice by the AJ, and error in the AJ's pre-hearing rulings. Second,

complainant argues that the AJ's findings are against the weight of

the evidence.

The agency's comments on appeal support the conclusion of the RD.

The agency argues that the AJ made logical and reasonable rulings and

further argues that there is no reason to believe that the actions of

the AJ evidenced prejudice against the complainant. The agency requests

that the Commission affirm the FAD.

ANALYSIS AND FINDINGS

Concerning complainant's contentions on appeal that he was denied due

process in the administration of the hearing, the Commission notes that

an AJ has broad discretion in the conduct of a hearing, including such

matters as discovery orders. See 64 Fed. Reg 37,644, 37,657 (1999) (to

be codified at 29 C.F.R. � 1614.109(c)); Malley v. Dept. of the Navy,

EEOC Appeal No. 01951503 (May 22, 1997). After reviewing the record,

the Commission concludes that the AJ did not abuse his discretion.

We have considered complainant's allegations that the RD is against

the weight of the evidence for various reasons. We note that the

FAD modified the AJ's RD. The following analysis will pertain to

the AJ's findings.<4> Pursuant to 64 Fed. Reg 37,644, 37,659 (1999)

(to be codified at 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).

After a careful review of the record, the Commission finds that the AJ's

decision 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 arguments on appeal, the agency's response,

and arguments and evidence not specifically discussed in this decision,

the Commission AFFIRMS.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

April 26, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 Previously Commission regulations permitted agency modification of

recommended decisions. However, the revised regulations, do not permit

the agency to modify recommended decisions. See 64 Fed. Reg. 37,644,

37,657 (1999)(to be codified at 29 C.F.R. � 1614.110(a)).

3 The Commission previously reversed the agency's dismissal of this

claim on the grounds that complainant failed to state a claim and that

he was not aggrieved. See Fried v. Department of the Treasury, EEOC

Request No. 01951751 (September 11, 1995).

4 The FAD accepted the RD with modifications. We find that the

modifications made by the FAD are not outcome determinative, but we

also find that the RD's findings relative to the modified issues are

substantially supported. Accordingly, we modify the FAD and substitute

the AJ's findings.