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.